II 


THE 


DOMESTIC  AND  FOREIGN  RELATIONS 


or  THE 


UNITED    STATES 


BY    JOEL    PARKER. 


CAMBRIDGE: 
WELCH,    BIGELOW,    AND    COMPANY 

PRINTERS  TO  THE  UNIVERSITY. 

1862. 


MEMORANDUM.  —  The  substance  of  the  first  part  of  the  following  Tract  was 
contained  in  a  Lecture  delivered  to  the  students  in  the  Law  School  of  Harvard 
College,  by  the  author,  as  Royall  Professor  of  Law  in  that  Institution,  on  the  25th 
of  June,  1861.  Subsequent  events  have  led  to  an  enlargement  of  it,  and  to  its 
publication  in  the  January  number  of  the  North  American  Review.  It  is  now 
issued  as  a  separate  Article,  a  single  paragraph  being  omitted  because  it  was  little 
more  than  a  repetition  of  what  was  expressed  elsewhere,  and  some  Notes  being 
added  in  an  Appendix. 

CAMBRIDGE,  January  1,  1862. 


THE   DOMESTIC   AND   FOREIGN   RELATIONS 


UNITED    S  TAT  E  S. 


IT  may  be  stated  as  a  result  of  our  examination  of  the 
alleged  Right  of  Secession,  that  the  people  of  the  several 
States  composing  the  United  States,  under  the  Constitution, 
—  whether  that  instrument  be  regarded  as  an  organic  law,  or 
as  a  compact,  —  form  an  entire  Nation,  for  the  purposes  for 
which  they  are  thus  united ;  while  under  their  State  organiza 
tions  they  exercise  many  powers  of  sovereignty,  of  a  political 
and  municipal  character,  some  of  which  are  subordinate  to  the 
powers  of  the  General  government,  and  others  independent  of 
that  government  because  they  do  not  fall  within  the  scope  of 
the  purposes  for  which  it  was  organized,  and  all  "  powers  not 
delegated  to  the  United  States  by  the  Constitution,  nor  pro 
hibited  by  it  to  the  States,  are  reserved  to  the  States  respec 
tively,  or  to  the  people." 

This  nation  has,  for  the  accomplishment  of  the  objects  of  its 
existence,  all  the  attributes  of  sovereignty.  The  Constitution — 
providing  that  itself  shall  be  the  supreme  law  of  the  land,  and 
binding  upon  all  the  judges  of  the  several  States,  anything  in 
the  constitution  or  laws  of  any  State  to  the  contrary  notwith 
standing  ;  requiring  all  the  legislators,  and  executive  and  judi 
cial  officers  of  the  United  States,  and  of  the  several  States,  to 
take  an  oath  or  affirmation  to  support  it ;  and  defining  what 


shall  constitute  treason  against  the  United  States — shows  that, 
so  far  as  the  objects  and  purposes  of  the  national  government 
extend,  an  allegiance  is  due  to  that  government  from  all  the 
citizens  within  its  limits,  paramount  to  and  exclusive  of  any 
allegiance  due  to  the  several  States  ;  because  the  allegiance  to 
the  State  arises  under  the  State  organization  and  constitution, 
which,  to  the  extent  covered  by  the  Constitution  of  the  United 
States,  are  subordinate  to  the  authority  of  the  United  States, 
under  that  Constitution.  There  can  be,  therefore,  no  right  on 
the  part  of  any  State,  or  of  the  people  of  any  State,  through 
or  by  any  State  authority  or  action,  or  by  any  popular  vote,  to 
terminate  this  allegiance  to  the  United  States. 

The  Union  under  the  Constitution  being  perpetual  and  in 
dissoluble,  it  is  to  be  subverted  only  by  the  exercise  of  the 
right  of  revolution,  for  sufficient  cause.  And  this  right  of  rev 
olution  is  a  personal,  and  not  a  State  right,  and  of  an  imperfect 
character ;  for  an  attempt  at  revolution  is  legally,  in  its  incep 
tion,  and  until  it  is  attended  with  success,  neither  more  nor 
less  than  rebellion  against  the  existing  government,  which  of 
course  has  at  least  an  equal  right  to  resist  the  attempt  by  all 
the  forces  at  its  command.  It  follows,  therefore,  that  those 
persons  who  have  been  active  in  the  attempted  secession  of  the 
several  States  have,  as  respects  the  United  States,  no  authority 
derived  from  any  State  organization ;  nor  any  exemption, 
through  the  color  of  any  exercise  of  State  authority,  from 
the  ordinary  consequences  which  attach  to  an  insurrection  or 
rebellion.  No  convention  of  the  people  of  a  State  could  con 
fer  any  authority  to  resist  the  government  of  the  United  States, 
in  the  full  exercise  of  its  functions,  in  all  of  its  departments, 
legislative,  executive,  and  judicial ;  and  still  less  could  any  act 
of  a  State  legislature  give  any  color  of  legal  authority  for 
such  resistance,  whether  such  legislature  assumed  to  act  un 
der  the  State  constitution  as  it  existed  before  the  attempted 
secession,  or  under  the  authority  of  a  convention  which,  hav 
ing  declared  the  secession,  assumed  to  confer  new  legislative 


powers,  or  to  adopt  a  new  constitution.  All  persons  who  have 
placed  themselves  in  hostility  to  the  United  States  by  acts  of 
war,  are  of  course  responsible  personally  for  those  acts,  as 
rebels  and  traitors.  The  State  which  they  assume  to  represent 
is  not  responsible,  because  the  State,  as  a  State,  did  not,  and 
could  not,  in  any  mode,  give  authority  to  commit  acts  of  rebel 
lion  and  treason.  There  is  no  war  between  any  State,  admit 
ted  into  the  Union,  and  the  United  States ;  because  the  State 
itself —  the  legal,  constitutionally  organized  State  —  is  not  in 
rebellion ;  and  there  is  therefore  no  authority  to  confiscate  the 
property  of  any  State,  as  State  property,  for  any  such  State  of 
fence.  The  persons  who  have  seized  upon  the  State  organiza 
tion  for  the  purposes  of  rebellion,  and  who  wield  an  apparent 
State  authority  for  such  purposes,  —  who  have,  moreover,  cre 
ated  a  confederation  under  this  usurpation,  and  style  them 
selves  governors  and  senators,  generals  and  captains,  president 
and  secretaries,  —  are  in  no  manner  shielded  by  their  titles  or 
offices  from  the  punishment  due  to  their  acts  of  treason,  which 
are,  in  fact,  in  more  senses  than  one,  committed  on  private 
account. 

This  serves  to  show  that  the  proclamation  of  President  Lin 
coln,  treating  the  seizure  of  forts,  arsenals,  and  dock-yards, 
and  the  bombardment  of  Fort  Sumter,  as  acts  of  insurrection, 
and  requiring  those  concerned  in  them  to  retire  peaceably  to 
their  respective  abodes,  was  not  only  in  precise  accordance 
with  the  requisition  of  the  statute  of  1795,  but  was  founded 
upon  the  only  correct  legal  view  of  the  existing  state  of  things 
which  called  it  forth.  The  acts  of  hostility  against  the  gov 
ernment  had,  perhaps,  assumed  such  formidable  proportions 
as  to  be  appropriately  designated  as  war ;  but  it  was  a  war  of 
persons  owing  allegiance  to  the  general  or  national  govern 
ment,  and  not  a  war  of  governments.  Those  acts  were  not 
more  than  acts  of  treason  because  millions  were  engaged  in 
them,  and  they  were  not  less  than  acts  of  treason  because  of 
the  assumed  titles,  military  and  civil,  or  of  the  assumption  of 


6 

State  or  Confederate  authority,  under  color  of  which  they  were 
committed.  There  were  millions  of  people  in  India  engaged 
in  a  war  against  the  government  of  Great  Britain,  within  a 
short  period ;  and  most  of  them  acted  under  the  orders  of  per 
sons  who  stood  to  them  in  the  relation  of  kings  and  princes, 
for  certain  purposes,  having  recognized  authority  for  such 
purposes,  but  who  had  no  authority  for  the  objects  and  pur 
poses  of  such  a  war ;  and  they  were  all,  kings,  princes,  and 
sepoys,  held  alike  as  rebels  against  the  paramount  govern 
ment,  —  their  guilt  differing  only  in  degree,  according  to  the 
circumstances  of  enormity  attending  it.  We  do  not  inquire 
into  the  causes  of  that  revolt,  when  we  consider  the  case  in  its 
political  and  legal  aspects  in  regard  to  the  United  States. 
That  is  a  matter  between  the  persons  engaged  in  it  and  Great 
Britain.  The  government  of  the  United  States  has  nothing  to 
dread  from  such  an  inquiry,  in  the  present  instance  ;  but  other 
nations  will  not  enter  into  that  inquiry,  and  it  is  foreign  to 
our  immediate  purpose. 

We  perceive,  therefore,  that  the  criticism  upon  the  procla 
mation  of  the  President  requiring  the  rebels  to  disperse,  that 
it  addressed  its  command  in  fact  to  millions,  and  that  it  was 
preposterous  to  require  such  large  numbers,  like  an  ordinary 
mob,  to  retire  to  their  places  of  abode ;  and  that  other  criti 
cism  which  assumed  that  the  States  were  the  actors  in  the  war 
fare  which  was  waged,  and  that  the  statute  and  the  proclama 
tion  could  not  apply,  because  the  States  had  no  abodes  to  retire 
to,  —  fail  entirely  of  their  intended  force.  Rebels  may  form 
political  associations  for  themselves,  and  may  assume  to  have  a 
government  for  which  they  ask  and  claim  recognition.  They 
may,  as  between  themselves,  wield  the  powers  of  a  State  gov 
ernment,  if  they  can  usurp  the  State  authority,  and  use  it  as  if 
they  were  the  rightful  possessors  of  it.  They  may  thus  have 
a  government  de  facto,  and  it  may  be,  as  among  themselves, 
de  jure  also.  But  all  this  does  not  change  their  legal  relations 
to  the  government  against  which  they  are  in  arms,  until  they 


have  by  their  power  accomplished  the  purpose  of  the  insurrec 
tion,  by  a  practical  maintenance  of  their  assumed  indepen 
dence. 

We  deduce  from  these  premises  the  conclusion,  that,  as  re 
gards  the  United  States,  there  is  no  right  in  any  organization 
which  these  rebels  and  traitors  have  constituted  —  whether 
designated  as  State  or  Confederation  —  to  enact  a  law,  or  to 
adopt  an  ordinance,  which  shall  be  recognized  by  the  United 
States  as  having  force  or  effect  as  a  legal  enactment,  or  as  con 
ferring  upon  any  person  power  to  be  used  in  hostility  to  the 
existing  government.  There  can  be  no  lawful  confederation 
of  the  States  involved  in  the  attempted  secession,  because  there 
has  been  no  secession  of  those  States  which  is  recognized  as 
having  any  validity.  They  still  remain  as  component  parts  of 
the  United  States,  having  doubtless  a  large  loyal  population, 
although  the  violence  of  the  insurgents  has  for  a  time  sus 
pended  the  due  exercise  of  the  authority  of  the  United  States, 
and  that  of  the  State  also,  by  a  usurpation  of  the  powers  of 
the  latter,  and  an  exercise  of  the  semblance  of  authority  under 
the  State  organization.  As  States  in  the  Union,  the  Constitu 
tion  expressly  forbids  any  confederation  among  them  ;  and  for 
that  reason  also,  if  there  had  been  no  insurrection,  and  no  at 
tempt  to  array  State  authority  against  the  national  govern 
ment,  the  confederation  of  the  States  would  be  unconstitu 
tional  ;  the  self-styled  Congress  of  the  Confederate  States  an 
unauthorized  body ;  and  the  so-called  President  of  that  con 
federation,  and  his  cabinet  councillors,  suitable  subjects  for 
the  criminal  jurisprudence  of  the  United  States,  on  an  indict 
ment  for  a  conspiracy,  —  if  their  acts  of  war  had  not  made 
them  liable  to  the  graver  penalty  attached  to  treason. 

As  a  necessary  consequence  of  all  this,  the  proclamation  of 
Mr.  Jefferson  Davis,  calling  himself  President  of  the  Confed 
erate  States,  in  which  he  invited  applications  for  letters  of 
marque  and  reprisal  against  the  United  States, —  or,  in  other 
words,  in  a  legal  view,  Mr.  Davis's  advertisement  for  pro- 


8 

posals  to  rob,  under  his  sanction,  such  citizens  of  the  United 
States  as  might  have  property  afloat,  —  was  no  better  than 
the  advertisement  of  any  other  private  person ;  and  the  letters 
of  marque  and  reprisal  issued  by  him  as  President,  and  coun 
tersigned  by  R.  Toombs  as  if  he  were  a  Secretary  of  State, 
are,  as  respects  the  United  States,  no  better  than  so  much 
waste  paper,  for  the  justification  and  protection  of  those  who 
capture  property  under  them.  Such  persons  are  amenable 
to  the  laws  of  the  United  States  as  pirates,  under  the  act  of 
Congress  of  1790,  Chapter  9. 

The  eighth  section  of  that  statute  provides  that,  "  if  any  per 
son  or  persons  shall  commit  upon  the  high  seas,  or  in  any 
river,  haven,  basin,  or  bay  out  of  the  jurisdiction  of  any  par 
ticular  State,  murder  or  robbery,  or  any  other  offence  which, 
if  committed  within  the  body  of  a  county,  would  by  the  laws 

of  the  United  States  be  punishable  with  death ; every 

such  offender  shall  be  deemed,  taken,  and  adjudged  to  be  a 
pirate  and  felon,  and,  being  thereof  convicted,  shall  suffer 
death."  The  ninth  section  enacts  that,  "  if  any  citizen  shall 
commit  any  piracy  or  robbery  aforesaid,  or  any  act  of  hostility 
against  the  United  States,  or  any  citizen  thereof,  upon  the 
high  sea,  under  color  of  any  commission  from  any  foreign 
prince  or  state,  or  on  pretence  of  authority  from  any  person, 
such  offender  shall,  notwithstanding  the  pretence  of  any  such 
authority,  be  deemed,  adjudged,  and  taken  to  be  a  pirate, 
felon,  and  robber,  and  on  being  thereof  convicted  shall  suffer 
death." 

The  insurgents  are  not  absolved  from  responsibility  under 
this  statute  by  the  fact  that  their  offences  were  committed  in 
the  course  of  what  in  other  aspects  may  have  the  character  of 
war,  nor  by  the  fact  that  they  have  been  taken  prisoners  in 
that  war. 

Martens  admits  the  right  of  the  conqueror  to  take  the  lives 
of  prisoners  in  three  cases :  — 

"1.  When  sparing  their  lives  is  inconsistent  with  his  own  safety; 


9 

2.  in  cases  where  he  has  the  right  to  exercise  the  talio  or  to  make  re 
prisals  ;  3.  when  the  crime  committed  by  those  who  fall  into  his  hands 
justifies  the  taking  of  their  lives."  —  Summary  of  the  Law  of  Nations, 
Chap.  3,  Sect.  4. 

Yattel  concedes  a  right  to  punish  prisoners  who  have  been 
personally  guilty  of  some  crime  against  the  captor. 

"  Prisoners  may  be  secured,  and,  for  this  purpose,  they  may  be  put 
into  confinement,  and  even  fettered  if  there  be  reason  to  apprehend  that 
they  will  rise  upon  their  captors  or  make  their  escape.  '  But  they  are 
not  to  be  treated  harshly,  unless  personally  guilty  of  some  crime  against 
him  who  has  them  in  his  power.  In  this  case  he  is  at  liberty  to  punish 
them ;  otherwise  he  should  remember  that  they  are  men,  and  unfortu 
nate."— Book  III.  Chap.  8,  Sect.  150. 

It  is  by  no  means  clear  that  those  who  come  under  the  con 
demnation  of  this  statute  of  1790  by  acts  of  force  and  plun 
der  on  board  the  Confederate  privateers,  would  not  be  liable 
to  the  same  condemnation  under  the  rules  of  public  law  ;  for 
although  a  pirate  is  generally  described  as  hostis  humani  gene 
ris,  because  the  buccaneer  ordinarily  makes  war  indiscrimi 
nately  upon  the  vessels  of  all  nations,  yet  if  a  band  of  sea-rob 
bers  should  confine  their  depredations  to  the  commerce  of  a 
single  nation,  it  would  seem  that,  as  to  that  nation,  their  crime 
might  well  be  regarded  as  piracy,  even  if  other  nations  whose 
commerce  was  not  assailed  did  not  so  regard  it. 

It  may  be  asked  wherein  consists  the  material  difference 
between  persons  who  act  iinder  a  privateer's  commission,  and 
capture  property  on  the  high  seas,  and  those  who  wage  war 
upon  the  land,  and  commit  homicide,  and  burn,  destroy,  or 
capture  property  there.  Why  should  the  former  when  taken 
be  held  and  treated  as  pirates,  and  the  others  when  captured 
held  and  exchanged  as  prisoners  of  war  ?  It  is  a  sufficient 
answer  to  this  to  say,  that  the  war  of  the  privateer  is  mainly 
upon  the  property  of  private  persons,  by  private  parties,  for 
their  private  emolument.  If  the  privateer  attack  a  public 
2 


10 

vessel,  it  is  the  exception,  and  not  the  rule ;  she  is  not  commis 
sioned  with  that  view.  On  the  other  hand,  the  war  of  the 
land  forces  is  of  a  more  public  character,  such  as  fighting  bat 
tles  offensive  or  defensive,  assaults  upon  forts  and  batteries, 
and  the  like,  and  their  interference  with  private  property  is 
usually  incidental  to  those  more  direct  and  public  operations. 
The  object  of  the  hostilities  waged  by  privateers  is  mainly  gain, 
by  the  plunder  of  commercial  vessels  ;  the  injury  done  to  the 
enemy  being  only  incidental  to  that  object.  The  object  of  the 
military  operations  upon  land  is  ordinarily  the  public  object 
of  the  war,  whatever  that  may  be,  the  injury  done  to  private 
property  being  incidental  to  the  measures  taken  for  that  pur 
pose.  If,  then,  the  hostilities  of  the  privateer  are  not  regarded 
as  war  under  lawful  authority,  they  have  the  character  of  pri 
vate  acts,  to  wit,  murder  and  robbery. 

Letters  of  marque  and  reprisal  were  originally  granted  to 
merchants  who  had  lost  goods  by  capture,  in  order  that  they 
might  indemnify  themselves  by  capture  of  the  property  of  sub 
jects  of  the  offending  nation.  They  were,  and  may  still  be, 
used  before  a  war,  as  a  means  of  procuring  justice  for  a  wrong 
or  injury  sustained  by  a  nation,  its  citizens  or  subjects ;  but 
a  resort  to  this  measure  presupposes  the  existence  of  such 
wrong  or  injury. 

"  When  a  nation  cannot  obtain  justice,  whether  for  a  wrong  or  an 
injury,  she  has  a  right  to  do  herself  justice.  But  before  she  declare 
war  (of  which  we  shall  treat  in  the  following  Book),  there  are  various 
methods  practised  among  nations,  which  remain  to  be  treated  of  here. 
Among  those  methods  of  obtaining  satisfaction  has  been  reckoned  what 
is  called  the  law  of  retaliation,  according  to  which  we  make  another 
suffer  precisely  as  much  evil  as  he  has  done 

"  Let  us  say,  then,  that  a  nation  may  punish  another  which  has  done 
her  an  injury,  as  we  have  shown  above  (see  Chap.  IV.  and  VI.  of  this 
Book),  if  the  latter  refuses  to  give  a  just  satisfaction  ;  but  she  has  not 
a  right  to  extend  the  penalty  beyond  what  her  own  safety  requires. 
Retaliation,  which  is  unjust  between  private  persons,  would  be  much 


11 

more  so  between  nations,  because  it  would,  in  the  latter  case,  be  difficult 
to  make  the  punishment  fall  on  those  who  had  done  the  injury.  What 
right  have  you  to  cut  off  the  nose  and  ears  of  the  ambassador  of  a  bar 
barian  who  had  treated  your  ambassador  in  that  manner  ?  As  to  those 
reprisals  in  time  of  war  which  partake  of  the  nature  of  retaliation,  they 
are  justified  on  other  principles ;  and  we  shall  speak  of  them  in  their 
proper  place."  —  Vattel,  Book  II.  Chap.  XVIII.  Sect.  339. 

"  Reprisals  are  used  between  nation  and  nation,  in  order  to  do  them 
selves  justice  when  they  cannot  otherwise  obtain  it.  If  a  nation  has 
taken  possession  of  what  belongs  to  another,  —  if  she  refuses  to  pay  a 
debt,  to  repair  an  injury,  or  to  give  adequate  satisfaction  for  it,  —  the 
latter  may  seize  something  belonging  to  the  former,  and  apply  it  to  her 
own  advantage  till  she  obtains  payment  of  what  is  due  to  her,  together 
with  interest  and  damages,  —  or  keep  it  as  a  pledge  till  she  has  re 
ceived  ample  satisfaction."  —  Ibid.,  Sect.  342. 

"  There  are  cases,  however,  in  which  reprisals  would  be  justly  con- 
demnable,  even  when  a  declaration  of  war  would  not  be  so ;  and  these 
are  precisely  those  cases  in  which  nations  may  with  justice  take  up 
arms.  When  the  question  which  constitutes  the  ground  of  a  dispute 
relates,  not  to  an  act  of  violence,  or  an  injury  received,  but  to  a  con 
tested  right,  —  after  an  ineffectual  endeavor  to  obtain  justice  by  con 
ciliatory  and  pacific  measures,  it  is  a  declaration  of  war  that  ought  to 
follow,  and  not  pretended  reprisals,  which,  in  such  a  case,  would  only 
be  real  acts  of  hostility,  without  a  declaration  of  war,  and  would  be 
contrary  to  public  faith,  as  well  as  to  the  mutual  duties  of  nations."  — 
Ibid.,  Sect.  354. 

"  Reprisals  by  commission,  or  letters  of  marque  and  reprisal,  granted 
to  one  or  more  injured  subjects,  in  the  name  and  by  the  authority  of 
a  sovereign,  is  another  mode  of  redress  for  some  specific  injury,  which 
is  considered  to  be  compatible  with  a  state  of  peace,  and  permitted  by 
the  law  of  nations.  The  case  arises  when  one  nation  has  committed 
some  direct  and  palpable  injury  to  another,  as  by  withholding  a  just 
debt,  or  by  violence  to  person  or  property,  and  has  refused  to  give  any 
satisfaction."  —  1  Kent's  Oomm.  61. 

The  principle  stated  in  these  authorities  relates  to  reprisals 
as  a  measure  of  redress  before  the  existence  of  a  war.  But 


12 

when  reprisals  are  resorted  to  in  time  of  war,  for  the  purpose 
of  weakening  the  enemy  by  depriving  his  subjects  or  citizens 
of  their  property,  the  principle  that  there  can  be  no  lawful  re 
prisals  until  an  injury  is  sustained  is  equally  applicable. 

Wheaton  enumerates,  "  among  the  various  modes  of  termi 
nating  the  differences  between  nations  by  forcible  means  short 
of  actual  war,"  — 

4.  "  By  making  reprisals  upon  the  persons  and  things  belonging  to 
the  offending  nation,  until  a  satisfactory  reparation  is  made  for  the 
alleged  injury." 

He  says :  — 

"  Reprisals  are  also  general  or  special.  They  are  general  when  a  state 
which  has  received,  or  supposes  it  has  received,  an  injury  from  another 
nation,  delivers  commissions  to  its  officers  and  subjects  to  take  the  per 
sons  and  property  belonging  to  the  other  nation,  wherever  the  same 
may  be  found.  It  is,  according  to  present  usage,  the  first  step  which 
is  usually  taken  at  the  commencement  of  a  public  war,  and  may  be  con 
sidered  as  amounting  to  a  declaration  of  hostilities,  unless  satisfaction 
is  made  by  the  offending  state.  Special  reprisals  are  where  letters  of 
marque  are  granted,  in  time  of  peace,  to  particular  individuals  who  have 
suffered  an  injury  from  the  government  or  subjects  of  another  nation." 

"  Reprisals  are  to  be  granted  only  in  case  of  a  clear  and  open  denial 
of  justice."  —  Elements  of  Int.  Law,  Part  IV.  Chap.  I.  Sect.  1,  2. 

It  is  one  of  the  singular  features,  however,  of  this  contro 
versy  and  warfare,  and  one  of  the  strange  perversions  of  all 
ordinary  action,  that  the  proposals  by  Mr.  Jefferson  Davis  to 
issue  "letters  of  marque  and  reprisal"  were  made  before  any 
article  of  property  belonging  to  the  Confederate  States,  or  any 
one  of  them,  or  to  any  person  claiming  to  be  a  citizen  of  any 
one  of  those  States,  had  been  interfered  with ;  or  any  person 
belonging  to  the  Confederate  States  had  been  molested  by  the 
government  of  the  United  States,  except  in  self-defence.*  It  is 
true  that  the  United  States  in  the  war  of  1812,  by  the  same 

*  April  17,  1861. 


13 

act  in  which  they  declared  the  existence  of  the  war,  author 
ized  the  President  to  issue  letters  of  marque  and  reprisal ;  but 
it  must  be  recollected  that  they  complained  of  long-continued 
grievances  by  reason  of  the  seizure  of  men  and  property,  the 
confiscation  of  property,  and  the  denial  of  reparation.  The 
cases  are  not  only  unlike  ;  they  are  entirely  dissimilar.  The 
Confederate  States  can  hardly  claim  to  make  reprisals  because 
of  the  passage  of  a  tariff  long  since  repealed,  even  supposing 
it  to  have  been  onerous  ;  or  the  passage  of  personal-liberty 
laws  by  some  of  the  States ;  or  the  refusal  of  Congress  to  as 
sent  that  slavery  should  be  admitted  into  the  Territories  ;  or 
the  election  of  Mr.  Lincoln.  None  of  these  things  were  done 
to,  or  suffered  by,  the  Confederate  States,  which  were  not  then 
in  existence  as  a  belligerent  power,  or  in  separation  from  the 
United  States.  In  the  war  of  the  Revolution,  the  United  Col 
onies  did  not  attempt  to  authorize  the  capture  of  private  prop 
erty  until  nearly  a  year  after  the  commencement  of  hostilities. 
Not  so  the  Secessionists.  There  is  no  doubt  that,  from  the 
first,  even  before  any  vote  of  secession,  this  warfare  upon  pri 
vate  property  was  relied  upon  as  one  of  the  means  of  insuring 
the  success  of  the  insurrection.  "  If  you  do  not  let  us  secede 
without  any  attempt  at  coercion,  we  will  refuse  to  pay  our 
debts,  and,  by  means  of  privateers,  ruin  your  commerce." 

From  what  has  been  thus  stated,  we  draw  a  further  conclu 
sion  that  the  recent  order  of  Mr.  Judah  P.  Benjamin,  acting 
Secretary  of  War  for  the  Confederate  States,  subjecting  Colonels 
Corcoran,  Wood,  and  Lee,  Major  Revere,  and  others,  who  were 
taken  prisoners  by  the  Confederate  forces  at  the  battle  of  Ball's 
Bluff,  to  imprisonment  in  the  dungeons  of  felons,  in  retalia 
tion  or  reprisal  for  the  imprisonment  of  persons  taken  prison 
ers  on  board  of  the  Confederate  privateers,  some  of  whom  have 
been  tried  for  piracy  under  the  statute  of  the  United  States 
before  cited,  is  a  gross  violation  of  the  rules  of  honorable  war 
fare.  The  Confederates  attempt  to  escape  from  the  odium  of 
treason  by  alleging  the  existence  of  war.  They  are  bound, 


14 

then,  to  conduct  the  warfare  on  their  part  according  to  the 
usages  of  civilized  nations.  But  there  is  no  usage  of  nations 
by  which  one  belligerent,  having  prisoners  who  have  never 
been  amenable  to  its  laws,  and  have  committed  no  crime 
against  them,  but  who  have  been  taken  in  battle  fighting  un 
der  their  own  banners,  can  immure  those  persons  in  damp 
dungeons,  and  subject  them  to  the  treatment  of  convicts, 
merely  because  its  belligerent  adversary,  finding  among  his 
prisoners  those  who  according  to  his  laws  owe  allegiance,  and 
have  committed  treason,  or  who  in  violation  of  long-existing 
statutes  have  incurred  the  guilt  of  piracy,  proceeds  with  such 
persons  in  the  ordinary  course  of  justice  according  to  those 
laws.  If  one  belligerent  merely  proceeds  according  to  law, 
that  furnishes  no  reason  why  the  other  should  resort  to  meas 
ures  sanctioned  by  no  law.  The  law  of  reprisals,  as  it  affects 
persons,  —  usually  termed  retaliation,  or  lex  talionis,  —  may 
rightfully  be  resorted  to  in  time  of  war  by  one  nation,  when  a 
gross  outrage  in  violation  of  the  laws  of  war  has  been  com 
mitted  upon  its  citizens  or  subjects  by  the  other,  in  order  to 
restrain  and  prevent  further  outrage.  Some  of  the  accredited 
writers  upon  public  and  natural  law  will,  however,  hardly  sus 
tain  even  this  proposition. 

Rutherforth  expressly  denies  the  right  of  retaliation  by  kill 
ing  prisoners,  when  the  enemy  has  done  the  same  thing  :  — 

"  The  exceptions  to  this  rule  of  not  killing  these  persons,  who  never 
were  in  arms  at  all,  or  who,  though  they  have  been  in  arms,  have  sur 
rendered  themselves,  are  very  few.  If  they  are  considered  as  mem 
bers  of  the  nation  with  which  we  are  at  war,  nothing  more  is  necessary, 
in  the  first  instance,  than  to  get  them  into  our  power.  The  law  of  na 
ture,  therefore,  will  not  allow  us  to  go  further.  But  if  they  whom  we 
thus  get  into  our  power  have  been  guilty  of  any  previous  crime  for 
which  they  deserve  death,  this  law  does  not  forbid  us  to  inflict  this 
punishment,  any  more  than  if  they  and  we  were  members  of  no  society 
at  all,  but  were  still  in  the  original  state  of  nature. 

"  The  obstinacy  of  holding  out  long  in  a  siege,  is  not  one  of  these 


15 

crimes ;  for  a  discharge  of  their  duty  towards  their  own  nation  is  not 
in  its  own  nature  a  crime  against  the  other.  There  might,  perhaps,  be 
some  advantage  in  putting  a  garrison  to  the  sword  for  holding  out  long, 
as  such  an  example  might  be  a  means  to  deter  others  from  giving  the 
besiegers  the  same  trouble  ;  but  neither  this  nor  any  other  motive  of 
mere  utility  will  render  it  just  to  take  away  the  lives  of  those  who  are 
in  our  power,  and  have  not  deserved  to  lose  them.  Neither  is  retalia 
tion  a  justifiable  cause  for  killing  prisoners  of  war.  Though  our  ad 
versaries  should  have  killed  the  prisoners  whom  they  have  taken  from 
us,  this  will  not  justify  us  in  killing  the  prisoners  whom  we  have  taken 
from  them.  The  law  of  nature  allows  of  retaliation  only  where  they 
who  have  done  harm  are  made  to  suffer  as  much  harm  as  they  have 
done.  But  to  kill  such  prisoners  of  war  as  are  in  our  power,  because 
the  nation  to  which  they  belong  has  treated  our  countrymen  in  this 
manner,  would  be  to  do  harm  to  one  person  because  harm  had  been 
done  by  another.  An  injury  which  is  done  by  a  nation  does,  indeed, 
communicate  itself  to  all  the  members  of  that  nation ;  and  such  a  com 
munication  of  guilt  is  all  that  can  be  pleaded  for  the  retaliation  of 
which  we  have  been  speaking.  But  Grotius  very  truly  replies  here, 
that  to  punish  captives  or  prisoners  of  war  in  this  manner  would  be  to 
punish  them  in  what  is  their  own  as  individuals,  whereas  the  national 
guilt  can  only  be  communicated  to  them  as  they  are  members  of  the 
offending  nation ;  and  consequently  the  proper  punishment  of  it  should 
only  be  inflicted  on  them  as  they  are  members  of  the  offending  nation, 
and  not  as  they  are  individuals."  —  Institutes  of  Natural  Law,  Book 
II.  Chap.  9,  Sect.  15. 

"  Prisoners  of  war  are,  indeed,  sometimes  killed ;  but  this  is  no 
otherwise  justifiable  than  as  it  is  made  necessary,  either  by  themselves, 
if  they  make  use  of  force  against  those  who  have  taken  them,  or  by 
others,  who  make  use  of  force  in  their  behalf,  and  render  it  impossible 
to  keep  them.  And  as  we  may  collect  from  the  reason  of  the  thing,  so 
it  likewise  appears,  from  common  opinion,  that  nothing  but  the  strong 
est  necessity  will  justify  such  an  act ;  for  the  civilized  and  thinking 
part  of  mankind  will  hardly  be  persuaded  not  to  condemn  it  till  they 
see  the  absolute  necessity  of  it."  —  Ibid. 

Martens  admits  a  more  extended  rule.  Under  the  head  of 
Reprisals,  he  says  :  — 


16 

"  A  sovereign  violates  his  perfect  obligations  in  violating  the  natural 
or  perfect  rights  of  another.  It  matters  not  whether  these  rights  are 
innate,  or  whether  they  have  been  acquired  by  express  or  tacit  cove 
nant,  or  otherwise. 

"  In  case  of  such  violation,  the  injured  sovereign  may  refuse  to  fulfil 
his  perfect  obligations  towards  the  sovereign  by  whom  he  is  injured,  or 
towards  the  subjects  of  such  sovereign.  He  may  also  have  recourse 
to  more  violent  means,  till  he  has  obliged  the  offending  party  to  yield 
him  satisfaction,  or  till  he  has  taken  such  satisfaction  himself,  and 
guarded  himself  against  the  like  injuries  in  future. 

"  There  are  many  acts  by  which  a  sovereign  refuses  to  do  or  to  suf 
fer  what  he  is  perfectly  obliged  to  do  or  to  suffer,  or  by  which  he  does 
what  he  is  ordinarily  obliged  to  omit,  in  order  to  obtain  satisfaction  for 
a  real  injury  sustained.  All  these  acts  are  called  reprisals.  Conse 
quently,  reprisals  are  of  many  sorts.  The  talio,  by  which  an  injury 
received  is  returned  by  an  injury  exactly  equal  to  it,  is  one  sort  of  re 
prisals  ;  but  the  use  of  it  is  not  indiscriminately  permitted  on  all  occa 
sions."  —  Law  of  Nations,  Book  VIII.  Chap.  1,  Sect.  3. 

In  a  note  he  adds  :  — 

"  If  the  ambassador  or  messenger  of  a  state  has  been  put  to  death 
by  another  state,  the  former  state  could  not,  on  that  account,  have  a 
right  to  put  the  ambassador  or  messenger  of  the  latter  to  death ;  but  in 
time  of  war,  a  prisoner  of  war  may  sometimes  be  put  to  death  in  order 
to  punish  a  nation  that  has  violated  the  laws  of  war.  In  the  first  case, 
the  injured  nation  has  other  means  of  obtaining  satisfaction,  and  of 
guarding  against  such  violations  for  the  future  ;  but  war  being  of  itself 
the  last  state  of  violence,  there  often  remains  no  other  means  of  guard 
ing  against  future  violations  on  the  part  of  the  enemy." 

So  Vattel  admits  the  right  to  execute  prisoners  in  retalia 
tion  for  an  execution  by  the  hostile  general  without  any  just 
reason,  and  against  an  inhuman  enemy  who  frequently  com 
mits  enormities. 

"  This  leads  us  to  speak  of  a  kind  of  retaliation  sometimes  practised 
in  war,  under  the  name  of  reprisals.  If  the  hostile  general  has,  with 
out  any  just  reason,  caused  some  prisoners  to  be  hanged,  we  hang  an 
equal  number  of  his  people,  and  of  the  same  rank,  —  notifying  to  him 


17 

that  we  will  continue  thus  to  retaliate,  for  the  purpose  of  obliging  him 
to  observe  the  laws  of  war.  It  is  a  dreadful  extremity  thus  to  con 
demn  a  prisoner  to  atone,  by  a  miserable  death,  for  his  general's  crime  ; 
and  if  we  had  previously  promised  to  spare  the  life  of  that  prisoner, 
we  cannot,  without  injustice,  make  him  the  subject  of  our  reprisals. 
Nevertheless,  as  a  prince  or  his  general  has  a  right  to  sacrifice  his  ene 
mies'  lives  to  his  own  safety  and  that  of  his  men,  it  appears,  that,  if 
he  has  to  do  with  an  inhuman  enemy,  who  frequently  commits  such 
enormities,  he  is  authorized  to  refuse  quarter  to  some  of  the  prisoners 
he  takes,  and  to  treat  them  as  his  people  have  been  treated."  —  Book 
III.  Chap.  8,  Sect.  142. 

Chancellor  Kent  sums  up  the  authorities  in  these  words :  — 

"  Cruelty  to  prisoners,  and  barbarous  destruction  of  private  property, 
will  provoke  the  enemy  to  severe  retaliation  upon  the  innocent.  Re 
taliation  is  said  by  Rutherforth  not  to  be  a  justifiable  cause  for  putting 
innocent  prisoners  or  hostages  to  death  ;  for  no  individual  is  chargeable, 
by  the  laws  of  nations,  with  the  guilt  of  a  personal  crime,  merely  be 
cause  the  community  of  which  he  is  a  member  is  guilty.  He  is  only 
responsible  as  a  member  of  the  state,  in  his  property,  for  reparation  in 
damages  for  the  acts  of  others ;  and  it  is  on  this  principle  that,  by  the 
law  of  nations,  private  property  may  be  taken  and  appropriated  in  war. 
Retaliation,  to  be  just,  ought  to  be  confined  to  the  guilty  individuals, 
who  may  have  committed  some  enormous  violation  of  public  law.  On 
this  subject  of  retaliation,  Professor  Martens  is  not  so  strict.  While  he 
admits  that  the  life  of  an  innocent  man  cannot  be  taken,  unless  in  ex 
traordinary  cases,  he  declares  that  cases  will  sometimes  occur,  when  the 
established  usages  of  war  are  violated,  and  there  are  no  other  means, 
except  the  influence  of  retaliation,  of  restraining  the  enemy  from  fur 
ther  excesses.  Vattel  speaks  of  retaliation  as  a  sad  extremity,  and  it 
is  frequently  threatened  without  being  put  in  execution,  and  probably 
without  the  intention  to  do  it,  and  in  hopes  that  fear  will  operate  to 
restrain  the  enemy.  Instances  of  resolutions  to  retaliate  on  innocent 
prisoners  of  war  occurred  in  this  country  during  the  Revolutionary 
war,  as  well  as  during  the  war  of  1812 ;  but  there  was  no  instance  in 
which  retaliation  beyond  the  measure  of  severe  confinement  took  place 
in  respect  to  prisoners  of  war."  —  Commentaries,  I.  93,  94. 
3 


18 

From  the  more  recent  work  of  Wheaton,  we  quote  to  the 
same  effect. 

"  A  belligerent  has,  therefore,  no  right  to  take  away  the  lives  of  those 
subjects  of  the  enemy  whom  he  can  subdue  by  any  other  means. 
Those  who  are  actually  in  arms,  and  continue  to  resist,  may  be  lawfully 
killed ;  but  the  inhabitants  of  the  enemy's  country,  who  are  not  in 
arms,  or  who,  being  in  arms,  submit  and  surrender  themselves,  may  not 
be  slain,  because  their  destruction  is  not  necessary  for  obtaining  the  just 
ends  of  war.  Those  ends  may  be  accomplished  by  making  prisoners  of 
those  who  are  taken  in  arms,  or  compelling  them  to  give  security  that 
they  will  not  bear  arms  against  the  victor  for  a  limited  period,  or  dur 
ing  the  continuance  of  the  war.  The  killing  of  prisoners  can  only  be 
justifiable  in  those  extreme  cases  where  resistance  on  their  part,  or  on 
the  part  of  others  who  come  to  their  rescue,  renders  it  impossible  to 
keep  them.  Both  reason  and  general  opinion  concur  in  showing,  that 
nothing  but  the  strongest  necessity  will  justify  such  an  act."  —  Interna 
tional  Law,  Part  IV.  Chap.  2,  Sect.  2. 

"  The  exceptions  to  these  general  mitigations  of  the  extreme  rights 
of  war,  considered  as  a  contest  of  force,  all  grow  out  of  the  same  origi 
nal  principle  of  natural  law,  which  authorizes  us  to  use  against  an  ene 
my  such  a  degree  of  violence,  and  such  only,  as  may  be  necessary  to 
secure  the  objects  of  hostilities.  The  same  general  rule,  which  deter 
mines  how  far  it  is  lawful  to  destroy  the  persons  of  enemies,  will  serve 
as  a  guide  in  judging  how  far  it  is  lawful  to  ravage  or  lay  waste  their 
country.  If  this  be  necessary,  in  order  to  accomplish  the  just  ends  of 
war,  it  may  be  lawfully  done,  but  not  otherwise.  Thus,  if  the  progress 
of  an  enemy  cannot  be  stopped,  nor  our  own  frontier  secured,  or  if  the 
approaches  to  a  town,  intended  to  be  attacked,  cannot  be  made  without 
laying  waste  the  intermediate  territory,  the  extreme  case  may  justify  a 
resort  to  measures  not  warranted  by  the  ordinary  purposes  of  war.  If 
modern  usage  has  sanctioned  any  other  exceptions,  they  will  be  found 
in  the  right  of  reprisals  or  vindictive  retaliation.  The  whole  interna 
tional  code  is  founded  upon  reciprocity.  The  rules  it  prescribes  are 
observed  by  one  nation,  in  confidence  that  they  will  be  so  by  others. 
Where,  then,  the  established  usages  of  war  are  violated  by  an  enemy, 
and  there  are  no  other  means  of  restraining  his  excesses,  retaliation 
may  justly  be  resorted  to  by  the  suffering  nation,  in  order  to  compel  the 


19 

enemy  to  return  to  the  observance  of  the  law  which  he  has  violated." 
—  Ibid.,  Sect.  6. 

It  is  not  astonishing,  however,  that  those  who  violate  all 
principle  by  the  issue  of  letters  of  marque  and  reprisal  when 
no  injury  has  been  done  to  them,  and  offer  a  premium  of 
twenty  dollars  each  for  the  destruction  of  persons  on  board 
any  armed  vessel  of  the  United  States  sunk,  burnt,  or  de 
stroyed  by  a  privateer  of  equal  or  inferior  force,  should 
imprison  and  threaten  to  hang  other  innocent  persons,  with 
out  any  trial,  merely  because  their  adversary  subjects  those 
who  accept  and  act  under  such  commissions  to  plunder  pri 
vate  property,  and  kill  persons  on  the  high  seas,  to  an  ordi 
nary  trial  by  jury  for  alleged  offences  committed  against  the 
laws  of  the  government  whose  citizens  are  thus  assailed. 

But  although  the  insurgents  stand  legally,  as  to  the  United 
States,  in  the  position  of  rebels  and  traitors,  and  their  priva- 
teersmen  as  pirates,  and  may  be  so  held  and  treated,  it  is  not 
a  necessary  result  that  the  penalty  should  be  exacted,  nor  that 
the  warfare  which  exists  should  be  carried  on,  in  all  respects, 
upon  the  assumption  that  the  only  status  which  can  be  assigned 
to  them  is  that  of  rebels.  An  insurrection  may,  as  we  have 
seen,  result  in  what  is  properly  denominated  a  war,  without 
losing  its  character  as  an  insurrection,  and  without  any  ex 
emption  of  those  who  participate  in  it  from  the  penalties  legally 
attached  to  rebellion.  Such  is  the  case  with  all  civil  wars 
which  originate  in  an  'attempt  to  overthrow  the  existing  gov 
ernment,  or  seek  a  separation  from  it.  But  in  proportion  to 
the  magnitude  and  gravity  of  the  warfare,  it  gradually  loses, 
in  the  public  mind,  its  distinctive  character  as  an  insurrection, 
being  known  as  a  civil  war ;  and  then  it  is  hardly  expedient  to 
insist  upon  the  enforcement  of  the  extreme  penalties  of  treason 
and  piracy,  against  those  who  are  merely  subordinate  and  hire 
ling  agencies  in  wickedness.  If  such  penalties  are  enforced 
at  all,  it  should  be  against  the  active  instigators  of,  and  princi 
pals  in,  the  rebellion ;  but  these  are  the  very  offenders  most 
likely  to  escape. 


20 

Great  Britain,  although  she  imprisoned  several  of  the  Colo 
nists  in  the  course  of  the  war  for  Independence,  and  treated 
them  thus  far  as  rebels,  did  not  in  any  case  proceed  to  the  ex 
treme  measure  of  execution. 

When  a  rebellion  is  not  immediately  suppressed,  but  as 
sumes  the  proportions  and  character  of  a  war  on  the  side  of 
the  insurgents,  the  parties  to  that  war  have  necessarily,  to  a 
certain  extent,  the  political  character  of  belligerents.  The 
government  assailed  must  employ  military  forces,  and  place 
them  in  conflict  with  the  military  force  arrayed  against  it ;  and 
the  ordinary  result  of  such  conflict  is  the  capture  of  prisoners 
on  both  sides.  In  the  first  stage  of  such  a  conflict,  it  may  be 
just  that  the  government  assailed  should  treat  its  prisoners 
according  to  their  legal  status  as  traitors,  or  pirates,  as  one  of 
the  means  of  suppressing  the  insurrection.  But  when  it -is 
apparent  that  this  means  fails  of  its  purpose,  and  becomes  an 
unnecessary  severity,  the  question  immediately  arises  whether 
the  government  is  not  unjust  to  the  persons  whom  it  holds  as 
captives,  and  who  were  mere  subordinates  in  the  hostilities 
which  have  been  waged,  if  it  refuse  to  extend  to  them  the 
usual  treatment  of  prisoners  of  war.  And  the  more  signifi 
cant  question  follows,  to  wit,  whether  it  is  not  guilty  of  still 
more  gross  injustice  if  it  leave  its  own  soldiers,  who  by  misfor 
tune  have  fallen  into  the  hands  of  the  other  party,  to  the  hard 
ships  of  a  captivity  which  it  could  terminate  at  any  time  by  an 
exchange.  That  government  which  sends  its  soldiers  into  the 
field  with  the  understanding  that,  if  taken  prisoners,  they  will 
be  left  to  their  fate,  without  an  attempt  to  redeem  them  from 
the  hardships  and  sufferings  incident  to  such  captivity,  except 
by  the  ultimate  success  of  the  war,  may  thereby  give  them  an 
additional  incentive  to  fight  unto  death  in  any  hopeless  en 
counter  in  which  they  shall  happen  to  be  involved ;  but  when 
it  places  itself  on  such  a  platform,  it  shows  that  it  has  little 
care  for  the  comfort  or  safety  of  those  who  fight  its  battles. 
Certainly,  an  administration  which  should  long  conduct  a  war 


21 

on  that  principle  would  not  deserve  to  have  battles  fought 
for  it. 

An  exchange  of  prisoners,  while  it  is  thus  far  a  recognition, 
by  implication,  of  a  political  status  of  the  insurgents  as  an 
organized  force,  implies  nothing  respecting  the  legal  char 
acter  of  that  force.  An  exchange  of  prisoners  may  be  made 
with  an  independent  belligerent  nation  long  established  ;  it 
may  be  made  with  a  belligerent  barbarian  ;  and  so  it  may 
be  made  with  insurgents,  or  even  with  those  who  are  strictly 
pirates. 

It  seems  clear  that,  while,  on  the  one  hand,  the  insurgents, 
by  any  amount  of  force  which  they  can  muster  in  the  field,  in 
giving  to  the  contest  the  character  of  a  war,  cannot  deprive 
the  government  assailed  of  the  right  to  treat  them  as  traitors ; 
so,  on  the  other  hand,  government  may  voluntarily  recognize 
the  force  arrayed  against  it  as  that  of  a  belligerent  party, 
against  which  it  may  adopt  the  modes  of  warfare  usual  among 
nations,  as,  for  instance,  a  blockade,  —  or  with  which  it  may 
negotiate  for  the  mitigation  of  the  horrors  and  sufferings  of 
the  warfare,  as  by  an  exchange  of  prisoners,  —  without  there 
by  depriving  itself  of  the  right  still  to  hold  the  persons  en 
gaged  in  the  insurrection  as  traitors  or  pirates,  according  to 
the  nature  and  character  of  their  hostile  acts. 

Regarding  the  Secessionists  as  mere  insurgents  and  traitors, 
who  by  means  of  the  insurrection  have  for  the  time  subverted 
the  legitimate  authority  of  the  United  States,  and  deprived 
that  government  of  the  revenue  from  customs  within  the  lim 
its  of  the  insurrection,  —  attempting  at  the  same  time  to  ap 
propriate  such  revenue  to  their  own  use,  —  the  government 
might,  by  a  mere  act  or  order,  have  closed  the  ports,  as  one  of 
the  means  of  suppressing  the  insurrection,  instead  of  battering 
down  the  towns,  which  would,  perhaps,  be  somewhat  more 
effectual.  There  seems  to  be  no  reasonable  doubt  that  the 
President  —  who,  under  his  power  and  duty  to  suppress  the 
insurrection,  might  order  the  latter  to  be  done,  if  in  his  judg- 


22 

ment  the  exigency  required  it  —  might  resort  to  the  milder 
measure  of  interdicting  all  commerce  there,  when  it  became 
apparent  that  such  commerce  was  not,  and  could  not' be,  car 
ried  on  with  the  United  States,  and,  instead  of  being  benefi 
cial,  was  hostile  to  them.  No  blockading  force  is  necessary  to 
the  validity  of  such  an  act  or  order.  Each  nation  has  a  right, 
for  its  own  reasons,  to  constitute  and  to  abolish  ports  of  entry  ; 
and  one  of  the  reasons  for  abolishing  a  port  might  be  the  ex 
istence  of  an  insurrection  there.  And  so  long  as  other  nations 
recognize  the  jurisdiction  and  authority  of  the  government 
which  abolishes,  over  the  locus  in  quo,  they  must  respect  the 
act  or  order  which  denies  entrance  there,  although  it  may  be 
a  mere  paper  regulation,  without  any  military  or  naval  force 
to  support  it.  If,  however,  the  abolishment  of  the  port  was  in 
fact  an  act  of  hostility  for  the  purpose  of  inflicting  an  injury 
upon  another  nation,  instead  of  being  designed  as  a  municipal 
or  domestic  regulation,  it  might  give  just  cause  of  offence. 

But  an  act  discontinuing  a  port  of  entry,  or  an  order  closing 
such  a  port  and  interdicting  commerce  there,  is  a  very  differ 
ent  matter  from  a  blockade  of  the  port.  The  term  "  block 
ade  "  has  its  appropriate  signification.  It  means  to  block  up, 
or  shut  up,  —  not  to  subvert  or  abolish  ;  nor  does  it  signify 
the  closing  of  the  port,  except  by  the  presence  of  a  force  for 
that  purpose.  A  blockade,  properly  so  called,  while  it  may  be 
used  to  suppress  an  insurrection,  is  not  a  mere  measure  for 
that  purpose,  without  other  incidents  or  consequences  attached 
to  it.  A  blockade  proper  imports  the  closing  of  the  port  of 
an  enemy  by  a  hostile  power,  thereby  forbidding  entrance  and 
exit,  under  certain  rules  and  limitations,  and  with  certain  ex 
ceptions ;  and  it  implies  at  the  same  time  a  right  in  other 
nations  to  enter  and  clear  from  the  port,  under  the  party  in 
actual  possession  of  it,  if  the  blockade  is  not  made  effectual 
by  a  competent  force.  It  is  not  the  exercise  of  a  mere  mu 
nicipal  or  domestic  right,  like  that  of  closing  a  port  by  a  re 
pealing  act,  or  an  affirmative  order  for  the  purpose ;  but  it  is  a 


23 

right  of  war,  acknowledged  by  the  law  of  nations  as  existing 
in  favor  of  one  belligerent  against  the  other,  and  regulated  by 
the  rules  of  international  law. 

A  few  extracts  from  an  approved  elementary  work  will  be 
sufficient  to  show  the  nature  of  a  blockade. 

"  Among  the  rights  of  belligerents,  there  is  none  more  clear  and  in 
controvertible,  or  more  just  and  necessary  in  the  application,  than  that 
which  gives  rise  to  the  law  of  blockade.  Bynkershoek  says,  it  is 
founded  on  the  principles  of  natural  reason,  as  well  as  on  the  usage  of 
nations ;  and  Grotius  considers  the  carrying  of  supplies  to  a  besieged 
town,  or  a  blockaded  port,  as  an  offence  exceedingly  aggravated  and  in 
jurious.  They  both  agree  that  a  neutral  may  be  dealt  with  severely ; 
and  Vattel  says,  he  may  be  treated  as  an  enemy.  The  law  of  blockade 
is,  however,  so  harsh  and  severe  in  its  operation,  that,  in  order  to  apply 
it,  the  fact  of  the  actual  blockade  must  be  established  by  clear  and  un 
equivocal  evidence ;  and  the  neutral  must  have  had  due  previous  notice 
of  its  existence ;  and  the  squadron  allotted  for  the  purposes  of  its  exe 
cution  must  be  competent  to  cut  off  all  communication  with  the  inter 
dicted  place  or  port ;  and  the  neutral  must  have  been  guilty  of  some 
act  of  violation,  either  by  going  in,  or  attempting  to  enter,  or  by  com 
ing  out  with  a  cargo  laden  after  the  commencement  of  the  blockade. 
The  failure  of  either  of  the  points  requisite  to  establish  the  existence 
of  a  legal  blockade,  amounts  to  an  entire  defeasance  of  the  measure, 
even  though  the  notification  of  the  blockade  had  issued  from  the  au 
thority  of  the  government  itself. 

"  A  blockade  must  be  existing  in  point  of  fact ;  and  in  order  to  con 
stitute  that  existence,  there  must  be  a  po^wer  present  to  enforce  it." 

"  The  definition  of  a  blockade  given  by  the  convention  of  the  Baltic 
powers,  in  1780,  and  again  in  1801,  and  by  the  ordinance  of  Congress, 
in  1781,  required  that  there  should  be  actually  a  number  of  vessels 
stationed  near  enough  to  the  port  to  make  the  entry  apparently  dan 
gerous." 

"  The  occasional  absence  of  the  blockading  squadron,  produced  by 
accident,  as  in  the  case  of  a  storm,  and  when  the  station  is  resumed 
with  due  diligence,  does  not  suspend  the  blockade,  provided  the  suspen 
sion,  and  the  reason  of  it,  be  known ;  and  the  law  considers  an  attempt 


24 

to  take  an  advantage  of  such  an  accidental  removal  as  an  attempt  to 

break  the  blockade,  and  as  a  mere  fraud But  if  the  blockade  be 

raised  by  the  enemy,  or  by  applying  the  naval  force,  or  a  part  of  it, 
though  only  for  a  time,  to  other  objects,  or  by  the  mere  remissness  of 
the  cruisers,  the  commerce  of  neutrals  to  the  place  ought  to  be  free. 
The  presence  of  a  sufficient  force  is  the  natural  criterion  by  which  the 
neutral  is  enabled  to  ascertain  the  existence  of  the  blockade." 

"  The  object  of  a  blockade  is  not  merely  to  prevent  the  importation 
of  supplies,  but  to  prevent  export  as  well  as  import,  and  to  cut  off  all 
communication  of  commerce  with  the  blockaded  port.  The  act  of 
egress  is  as  culpable  as  the  act  of  ingress,  if  it  be  done  fraudulently. 
The  modern  practice  does  not  require  that  the  place  should  be  in 
vested  by  land  as  well  as  by  sea,  in  order  to  constitute  a  legal  blockade ; 
and  if  a  place  be  blockaded  by  sea  only,  it  is  no  violation  of  belligerent 
rights  for  the  neutral  to  carry  on  commerce  with  it  by  inland  commu 
nications. 

"It  is  absolutely  necessary  that  the  neutral  should  have  had  due 
notice  of  the  blockade,  in  order  to  affect  him  with  the  penal  .conse 
quences  of  a  violation  of  it After  the  blockade  is  once  estab 
lished,  and  due  notice  received,  either  actually  or  constructively,  the 
neutral  is  not  permitted  to  go  to  the  very  station  of  the  blockading 
force,  under  pretence  of  inquiring  whether  the  blockade  had  termi 
nated,  because  this  would  lead  to  fraudulent  attempts  to  evade  it,  and 
would  amount  in  practice  to  a  universal  license  to  attempt  to  enter, 
and,  on  being  prevented,  to  claim  the  liberty  of  going  elsewhere." 

"  A  neutral  cannot  be  permitted  to  place  himself  in  the  vicinity  of  a 
blockaded  port,  if  his  situation  be  so  near  that  he  may,  with  impunity, 
break  the  blockade  whenever  he  pleases,  and  slip  in  without  obstruc 
tion.  If  that  were  to  be  permitted,  it  would  be  impossible  that  any 
blockade  could  be  maintained." 

"  The  fact  of  clearing  out  or  sailing  for  a  blockaded  port  is,  in  itself, 
innocent,  unless  it  be  accompanied  with  knowledge  of  the  blockade." 

"  In  Yeaton  vs.  Fry,  the  Supreme  Court  of  the  United  States  coin 
cided  essentially  with  the  doctrine  of  the  English  prize  courts ;  for  they 
held  that  sailing  from  Tobago  for  Curacoa,  knowing  the  latter  to  be 
blockaded,  was  a  breach  of  the  blockade,  and,  according  to  the  opinion 


25 

of  Mr.  Justice  Story,  in  the  case  of  the  Nereide, i  the  act  of  sailing  with 
intent  to  break  a  blockade  is  a  sufficient  breach  to  authorize  confisca 
tion.'  If  the  ports  be  not  very  wide  apart,  the  act  of  sailing  for 

the  blockaded  port  may  reasonably  be  deemed  evidence  of  a  breach 
of  it,  and  an  overt  act  of  fraud  upon  the  belligerent  rights." 

"  The  consequence  of  a  breach  of  blockade  is  the  confiscation  of  the 
ship  ;  and  the  cargo  is  always,  prima  facie,  implicated  in  the  guilt  of 

the  owner  or  master  of  the  ship If  a  ship  has  contracted  guilt 

by  a  breach  of  blockade,  the  offence  is  not  discharged  until  the  end 
of  the  voyage.  The  penalty  never  travels  on  with  the  vessel  farther 
than  to  the  end  of  the  return  voyage ;  and  if  she  is  taken  in  any  part 
of  that  voyage,  she  is  taken  in  delicto"  —  1  Kent's  Com.,  143-151. 

It  appears  from  all  this,  that  a  blockade  admits,  by  implica 
tion,  that  the  port  is  in  the  possession  of  a  party  or  power 
with  which  the  blockading  party  is  at  war,  and  with  which 
neutral  nations,  if  they  please,  may  hold  commercial  inter 
course,  subject  to  the  laws  of  war,  without  payment  of  duties 
to  the  party  instituting  the  blockade,  or  interruption  by  that 
party  except  by  the  blockade,  or  other  warlike  operations.  In 
other  words,  the  port  is  governed  for  the  time  being,  as  be 
tween  the  blockading  party  and  neutral  nations,  by  the  law  of 
nations  applicable  to  war  between  two  powers,  —  instead  of 
being  governed,  as  to  them  as  well  as  its  possessors,  by  the 
domestic  law  applicable  to  the  insurrectionary  resistance  to 
the  established  government.  That  government  cannot  say  to 
neutrals,  "  We  debar  you  from  entering  this  port  because  it  is 
blockaded,  and  if  you  violate  the  blockade,  you  will  be  liable 
to  capture  and  condemnation,"  —  leaving  them  to  inquire 
whether  the  blockade  is  maintained,  and  to  govern  themselves 
by  the  law  applicable  to  it,  —  and  at  the  same  time  say,  "  All 
intercourse  with  the  place  is  forbidden,  because  it  is  our  port, 
but,  by  reason  of  insurrectionary  force,  commerce  there  can 
not  be  carried  on  with  the  United  States,  and  the  place,  there 
fore,  is  no  longer  to  be  treated  as  a  port  during  the  continu 
ance  of  the  insurrection." 
4 


26 

The  right  to  treat  the  insurrectionary  force  as  a  belligerent 
power  by  the  institution  of  a  blockade,  thus  leaving  neutral 
nations  at  liberty,  if  they  please,  to  hold  commercial  inter 
course  with  the  insurgents  as  a  belligerent  power,  so  far  as 
they  may  without  a  violation  of  the  blockade,  is  entirely  con 
sistent  with  the  position  that  the  insurgents  themselves  are 
mere  rebels  and  traitors.  In  fact,  any  foreign  nation  may 
oblige  the  government  assailed  to  resort  to  a  blockade  in  order 
to  prevent  commercial  intercourse  with  the  insurgents,  so  far 
as  such  nation  is  concerned,  by  an  acknowledgment  of  their 
independence,  or,  according  to  modern  usage,  by  a  recognition 
of  them  as  a  belligerent  power,  with  a  proclamation  of  neutral 
ity  between  the  contending  parties,  —  which  certainly  can  in 
no  way  affect  the  right  of  the  existing  government  to  deal  with 
the  insurgents  as  traitors,  under  its  own  municipal  law.  And 
if  the  government  pleases  to  institute  a  blockade  in  anticipa 
tion  of  such  compulsion,  no  implication  can  arise  from  it 
changing  the  legal  relations  of  the  parties. 

Another  good  reason  exists  why  the  government  assailed 
may  prefer  to  give  to  the  insurgent  force  this  character  of  a 
belligerent  party,  so  far  as  its  relations  with  foreign  nations 
are  concerned.  The  laws  of  blockade,  and  of  capture  for  vio 
lation  of  it,  and  the  proceedings  for  adjudication  thereupon, 
are,  in  general,  well  settled  and  denned  ;  while  the  rules 
which  must  regulate  punishment  for  any  violation  of  an  order 
closing  the  port,  and  forbidding  entrance  into  it,  as  a  means  of 
suppressing  the  insurrection,  without  a  blockade,  are  not  so 
well  settled  ;  and  attempts  to  deal  with  infractions  of  such  or 
der  by  vessels  of  foreign  powers  would  lead  to  unnecessary 
collisions,  certainly  after  a  recognition  of  belligerency. 

It  has  been  contended  that  a  nation  cannot  blockade  its 
own  ports ;  but  this  position  is  not  tenable  when  the  port  is  in 
possession  of  a  hostile  force.  To  deny  the  right  of  blockade 
in  such  case  would  be  to  deny  its  right  to  the  port,  or,  practi 
cally,  to  make  it  a  free  port  until  the  government  which  for- 


27 

merly  held  and  still  claimed  it  should  destroy  it ;  for  no  mere 
order  or  act  for  closing  it  could  be  of  any  avail  against  a  for 
eign  nation  which  pleased  to  recognize  the  insurgents  as  bel 
ligerents,  without  a  blockade  superadded. 

This  leads  us  to  a  more  extended  examination  of  the  rela 
tions  which  foreign  nations  do  or  may,  according  to  the  rules 
of  international  law,  sustain  to  those  who,  under  the  plea  of 
Secession,  are  using  the  names  and  styles  of  several  States, 
and  who,  with  the  assumption  of  State  and  Confederate  au 
thority,  are  waging  insurrectionary  warfare  against  the  United 
States.  It  is  apparent,  from  what  has  been  said,  that  these 
relations  might  be  either  one  of  three  different  descriptions. 

1.  In  the  case  of  an  insurrection,  accompanied  by  an  at- 
A  tempt  to  establish  an  independent  government,  a  foreign  na 
tion  may  decline  in  any  wise  to  interfere  in  the  contest,  treat 
ing  the  case  precisely  as  if  it  were  an  insurrection  which  in 
no  way  affected  its  interests,  except  as  the  actual  force  of  the 
insurgents  interrupts  the  exercise  of  authority  by  the  gov 
ernment  assailed  in  places  where  that  government  had  before 
exercised  it,  and  still  claims  the 'right  to  continue  its  exercise. 
This  is  substantially  the  position  of  Russia,  and,  in  fact,  of  all 
European  and  other  foreign  powers,  as  respects  the  United 
States,  —  Great  Britain,  France,  and  Spain  excepted. 

The  foreign  government  which  places  itself  in  this  relation 
may,  and  in  some  contingencies  must,  recognize  the  existence 
of  the  insurrection,  and  vary  its  action,  or  that  of  its  citizens 
and  subjects,  accordingly.  As,  for  instance,  if  the  United  States 
government  should  prohibit  the  entrance  of  any  vessel  into  a 
particular  port  or  ports,  because  the  people  of  the  place  were 
in  a  state  of  insurrection,  so  that  commerce  with  the  United 
States  under  existing  treaties  could  not  be  carried  on  there,  a 
government  declining  any  recognition  of  the  insurgents,  or  in 
terference  with  reference  to  the  contest,  would  instruct  its  sub 
jects,  consuls,  and  officers  to  regard  the  prohibition,  and  com 
ply  with  the  regulation  of  the  existing  government,  as  if  that 


28 

government  still  possessed  full  jurisdiction  and  control  over  its 
bays,  harbors,  and  waters,  as  before  the  existence  of  the  insur 
rection,  —  without  requiring  any  actual  blockade  of  the  ports 
in  order  to  enforce  the  prohibition.  It  may  be  quite  consistent 
with  such  a  position  for  the  foreign  government  to  claim  that 
all  vessels  belonging  to  its  subjects,  which  should  enter  the 
ports  without  notice  of  the  prohibition,  should  be  permitted  to 
dispose  of  their  cargoes  and  depart  with  such  clearance  as  could 
be  obtained  there,  in  the  same  manner  as  if  the  prohibition 
had  not  existed ;  because,  acting  in  good  faith  toward  the  gov 
ernment,  as  if  the  insurrection  did  not  exist,  and  leaving  that 
government  to  contend  with  it  without  any  interference  or 
recognition  of  the  authority  or.  political  existence  of  the  in 
surgents,  the  foreign  nation  might  well  claim  that  its  subjects 
should  not  suffer  loss,  or  be  prejudiced,  without  warning. 

A  foreign  nation  occupying  such  a  position  comes  under  no 
obligation,  and  owes  no  duty,  to  the  insurgent  power.  It  may 
carry  on  its  commerce  with  the  government  assailed  without 
any  liability,  under  the  law  of  nations,  to  search  and  seizure 
for  contraband  goods.  It  ma/  avail  itself  of  any  implied  rec 
ognition  of  the  insurgents  by  the  government  assailed,  as  by 
the  institution  of  a  blockade,  and  insist  that  its  subjects  have 
a  right  to  hold  commercial  intercourse  with  the  insurrection 
ary  power  as  a  belligerent,  so  far  as  they  may  consistently  with 
the  blockade.  It  will  naturally  refuse  to  permit  its  vessels  to 
be  overhauled  and  detained  by  vessels  commissioned  by  the 
insurgents  as  privateers,  and  may  well  treat  such  interference 
as  piratical ;  although  it  will  be  at  its  pleasure,  and  consist 
ent  with  its  position,  to  permit  such  visitation  as  may  serve  to 
ascertain  the  nationality  of  its  vessels,  without  any  search  for 
enemies'  property,  or  articles  contraband  of  war. 

Such  a  position  would  by  no  means  require  the  foreign 
nation,  which  ignored  the  insurgent  force  as  an  existing  power, 
to  treat  the  privateers  commissioned  by  the  insurrectionary 
government  as  pirates.  It  is  true,  that  the  British  govern- 


29 

merit,  in  the  case  of  Greece,  in  1825,  alleged  that  "  a  power  or 
a  community  which  was  at  war  with  another,  and  which  cov 
ered  the  sea  with  its  cruisers,  must  either  be  acknowledged  as 
a  belligerent,  or  dealt  with  as  a  pirate."  But  the  necessity  is 
certainly  not  apparent,  in  respect  to  any  nation  whose  vessels 
are  not  interfered  with  by  such  cruisers.  With  the  exception 
of  nations  whose  commerce  is  assailed,  it  is  not  necessarily  an 
objection  to  a  privateer  that  she  holds  a  commission  from  an 
unrecognized  power.  Piracy,  it  is  evident,  may  be  of  a  gen 
eral,  or  of  a  limited  character.  The  slave-trade  is  piracy 
under  the  laws  of  Great  Britain  and  of  the  United  States. 
But  this  does  not  constitute  it  piracy  as  to  other  nations.  •  And 
the  same  may  be  true  of  that  description  of  piracy  which  con 
sists  in  robbing  merchant-vessels  on  the  high  seas.  The  fact, 
that  those  who  act  as  privateers  under  commissions  from  the 
Confederate  States  are  pirates  by  the  express  provision  of  the 
act  of  Congress  before  cited,  as  regards  the  United  States, 
against  whose  vessels  they  direct  their  warfare,  does  not  con 
stitute  them  pirates  as  respects  other  nations.  And  the  result 
would  be  the  same,  if,  by  the  rules  of  public  law,  also,  the 
United  States  might  hold  them  to  be  pirates.  France,  before 
her  recognition  of  the  independence  of  the  United  American 
Colonies,  did  not  treat  their  privateers  as  pirates  ;  and  the 
government  of  the  United  States  has  in  several  instances 
acted  on  the  principle  that  privateers  of  insurgents  not  ac 
knowledged  were  not  pirates  as  to  the  United  States,  and  were 
not  subject  to  capture  as  such.*  But  if  a  vessel  commissioned 
as  a  privateer  by  an  unrecognized  belligerent  rob  a  vessel  'of  a 
neutral  nation,  may  not  any  nation  treat  the  act  as  piracy  ?  f 

2.  Any  foreign  nation,  whenever  the  circumstances  are  such 
as  to  warrant  it,  may  acknowledge,  for  itself,  the  independence 

*  3  Wheaton's  Repprts,  610,  United  States  vs.  Palmer;  7  Wheaton's  Rep.  283, 
The  Santissima  Trinidad ;  Case  of  Captain  P.  P.  Voorhies,  before  a  naval  court- 
martial,  in  1844. 

t  1  Phillimore's  Int.  Law,  398  -  406. 


30 

of  an  insurgent  organization,  recognizing  it  as  having  a  na 
tional  existence,  and  treating  it  as  a  nation ;  in  which  case  it 
may  form  an  alliance  with  the  insurgent  government,  offensive 
and  defensive,  and  thus  become  a  party  to  the  war ;  or  it  may, 
with  such  acknowledgment,  assume  a  position  of  neutrality, 
claiming  the  rights  of  a  neutral,  as  between  what  would  then, 
to  the  party  recognizing  the  independence  of  the  insurgents, 
be  two  equally  independent  belligerent  nations.  Such  ac 
knowledgment  of  the  independence  of  an  insurgent  party, 
before  its  independence  is  recognized  by  the  government  which 
it  assails,  may  or  may  not  furnish  just  cause  of  war  on  the 
part  of  that  government,  according  to  the  circumstances  under 
which  it  is  made.  If  the  acknowledgment  follows  very  soon 
upon  the  breaking  out  of  the  insurrection,  and  while  the  gov 
ernment  is  pursuing  active  and  energetic  measures  to  suppress 
it,  the  aid  and  encouragement  thereby  given  to  the  rebels 
would  furnish  just  cause  of  offence  to  the  existing  government. 
On  the  other  hand,  after  the  contest  has  been  of  long  continu 
ance,  and  the  independence  of  the  insurrectionary  party  has 
been  practically  maintained  for  such  a  period  as  to  show  its 
capacity  to  uphold  it,  then  the  interests  of  other  nations  may 
well  justify  them  in  an  acknowledgment  of  what  has  been  ac 
complished, —  in  a  recognition  of  an  existing  fact,  —  without 
just  cause  of  offence  to  the  government  which  has  been  re 
sisted,  and  which  has  failed  to  overcome  that  resistance.  The 
commercial  interests  of  nations  having  no  interest  in  the  con 
test  may  require  that  they  should  make  the  recognition,  for 
the  purpose  of  trade,  or  for  other  desirable  ends ;  and  the  ex 
isting  government  cannot  complain  of  the  mere  acknowledg 
ment  of  an  actual  fact.  But  such  recognition  should  follow 
only  a  practical  independence.  Such  was  the  case  with  the 
acknowledgment  of  the  independence  of  the  South  American 
republics  by  the  United  States  in  1823,  the  latter  assuming 
to  act  as  a  neutral  nation. 

The   insurgent    party,   upon    such    acknowledgment,   may 


31 

claim  the  right  to  send  an  ambassador  or  minister  to  the 
nation  making  it,  and  may  expect  in  due  course  of  time  to 
receive  one,  and  to  have  their  intercourse  regulated  by  treaty. 
After  such  an  acknowledgment,  if  the  nation  making  it  does 
not  become  a  party  to  the  war,  —  either  by  a  treaty  of  alliance 
with  the  party  thus  recognized,  or  by  a  declaration  of  war  by 
the  government  assailed,  on  account  of  the  recognition,  —  the 
nation  making  the  acknowledgment  is  entitled  to  claim  the 
rights  of  a  neutral  with  respect  to  each  of  the  belligerent  par 
ties,  treating  each  as  a  nation,  and  forming  treaties  with  the 
insurgent  party,  as  if  it  were  a  nation,  equally  with  its  adver 
sary  ;  and  it  may  send  and  receive  ambassadors,  and  trade  to 
and  from  any  ports  occupied  and  held  by  the  party  acknowl 
edged,  except  so  far  as  it  is  prevented  by  the  exercise  of  rights 
accorded  by  international  law  to  belligerents  against  neutrals. 

The  neutral  nation  has  the  right  to  require  that  its  territory- 
shall  not  be  made  the  theatre  of  war,  nor  made  use  of  for  the 
purposes  of  war,  and  that  hostile  enterprises  shall  not  origi 
nate  in,  or  be  carried  on,  from  it.  Its  citizens  and  subjects 
may  be  the  carriers  of  the  goods  of  either  belligerent,  subject 
to  the  right  of  the  other  belligerent  to  capture  such  goods, 
and  to  search  and  detain  the  neutral  vessel  for  that  purpose, 
but  not  to  confiscate  the  ship  ;  and  they  may  maintain  free 
commercial  intercourse  with  each  belligerent,  subject  to  the 
rules  which  forbid  aid  to  the  belligerent  in  the  prosecution  of 
the  war,  and  to  the  right  of  the  belligerent  to  prevent  such  in 
tercourse  by  an  efficient  blockade. 

The  duty  of  the  neutral  is  not  to  favor  one  belligerent  to 
the  detriment  of  the  other,  —  not  to  transport  munitions  of 
war,  or  other  goods  contraband  of  war,  to  either  belligerent, 
—  not  to  carry  officers,  soldiers,  or  despatches  of  either,  —  to 
respect  any  blockade  by  one  belligerent,  of  the  ports  of  the 
other,  if  it  is  efficient,  —  and,  generally,  not  to  aid  either  bel 
ligerent,  in  the  prosecution  of  the  war,  except  as  the  ordinary 
commercial  transactions  in  goods  not  contraband  incidentally 
furnish  such  aid. 


32 

The  rights  of  the  belligerent  as  respects  the  neutral  are,  to 
visit  and  search  his  merchant-vessels,  on  the  high  seas,  for  the 
purpose  of  ascertaining  whether  enemies'  property,  or  goods 
contraband  of  war,  or  persons  whom  the  neutral  may  not 
carry,  are  on  board ;  to  capture  the  property  of  the  enemy 
so  found ;  *  and  for  violation  of  belligerent  rights,  by  aid 
rendered  to  the  enemy  in  transporting  goods  contraband  of 
war,  or  persons  in  the  service  of  the  enemy  in  the  prosecution 
of  the  war,  as  officers,  soldiers,  or  other  functionaries,  or  the 
despatches  of  the  enemy,  —  and  also  for  violation  of  blockade, 
—  to  capture  and  confiscate  the  ship  and  goods. 

These  are  the  principal  rights  and  duties  of  the  parties,  as 
set  forth,  in  substance,  by  accredited  writers  on  international 
law,  subject  in  some  instances  to  limitations  and  modifications, 
to  which  we  shall  refer,  so  far  as  they  appear  to  be  material  to 
the  present  discussion. 

No  nation  has  as  yet  acknowledged  the  independence  of 
the  Confederate  States.  Such  acknowledgment  is  not  usu 
ally  made,  unless  by  a  nation  which  is  disposed  to  ally  itself 
with  the  insurgents  in  hostility  to  the  government  assailed, 
until  the  independence  of  the  insurgents  has  been  acknowl 
edged  by  that  government,  or  until  it  has  been  practically 
achieved. 

3.  It  is  competent  for  any  foreign  nation,  from  the  time 
when  an  insurrectionary  force  assumes  to  institute  a  form  of 
government,  and  to  carry  on  a  war,  to  recognize  the  insur 
gents  as  a  belligerent  party. 

Considerations  of  policy,  as  well  as  of  comity,  may  well 
postpone  such  a  recognition  until  there  has  been  ample  time 
for  the  government  assailed  to  assert  its  power  for  the  suppres 
sion  of  the  insurrection.  But  these  are  matters  of  which  each 
nation  must  judge  for  itself.  Great  Britain  was  the  first  to 
make  such  recognition  of  the  Confederate  States.  France  and 
Spain  have  since  followed  the  example. 

*  See  Appendix,  Note  A. 


33 

In  one  sense,  this  is  but  the  recognition  of  an  existing  fact. 
It  seems,  however,  to  carry  with  it  something  more  than  a  mere 
acknowledgment  of  the  fact  that  there  is  a  state  of  civil  war 
existing ;  for  that  fact  may  be  recognized,  spoken  of,  deplored, 
and  sympathy  expressed,  as  has  been  done  by  Russia,  without 
any  political  consequences  attached  to  such  recognition. 

The  formal  recognition  of  the  insurgent  party  as  a  bellige 
rent,  by  another  nation,  gives  the  insurgents  a  political  status 
as  to  the  party  making  the  recognition,  and  involves  conse 
quences  to  the  government  which  is  attempting  to  suppress  the 
insurrection,  as  has  been  already  suggested.  This  recognition 
appears  to  be  an  action  intermediate  as  regards  the  other  two, 
and  to  be  a  convenient  mode  of  dealing  with  a  case  of  intestine 
war  by  a  foreign  nation  which  is  desirous  of  being  civil  to  the 
insurgent  party,  and  of  availing  itself  of  all  the  intercourse 
which  can  be  established  with  them,  without  committing  itself 
to  an  acknowledgment  of  an  independence  which  may  never 
be  achieved,  and  without  the  establishment  of  diplomatic  rela 
tions,  which  might  be  suddenly  terminated,  and  in  a  manner 
not  greatly  to  the  credit  of  the  neutral,  making  the  acknowl 
edgment  of  an  independence  which  was  proved  to  be  an  abor 
tion  by  the  suppression  of  the  rebellion  very  soon  afterward. 

As  Great  Britain  was  the  first  to  acknowledge  the  bellige 
rency  of  the  Confederates,  and  as  this  acknowledgment  is  the 
only  one  which  has  affected  the  relations  of  the  United  States 
in  any  considerable  degree,  we  shall  pursue  the  residue  of  our 
discussion  with  a  more  particular  reference  to  the  existing  re 
lations  between  Great  Britain  and  the  United  States.  Her 
acknowledgment  did  not  give  the  insurgents  a  right  to  send 
an  ambassador  to  the  Court  of  St.  James,  nor  to  claim  a  treaty 
of  amity  and  commercial  relations.  It  did  not  place  them,  as 
respects  her,  in  the  position  of  a  nation.  But,  being  acqui 
esced  in  by  the  United  States,  it  gave  her  rights  as  against 
them  which  she  could  not  have  had,  as  a  neutral  nation,  but 
for  the  recognition ;  and  it  also  operated  to  give  rights  to  the 
5 


34 

insurgent   government  as  against  her,  which  she  would  not 
otherwise  have  permitted  it  to  enjoy. 

Great  Britain  declared  that  she  was  cognizant  of  the  fact 
that  a  civil  war  existed  in  the  United  States.  That  is  nothing. 
All  the  rest  of  the  civilized  world  knew  the  same  thing.  But 
by  adding  the  recognition,  she  accorded  to  them  the  warlike 
rights  of  a  belligerent  nation ;  and  by  her  superadded  declara 
tion  of  strict  neutrality,  she  allowed  to  them,  for  the  general 
purposes  of  commercial  intercourse  and  warlike  operations, 
all  the  rights  which  she  allows  to  the  United  States,  aside  from 
previous  treaty  stipulations.  She  bound  herself  to  respect 
their  "  stars  and  bars  "  equally  with  the  flag  of  the  United 
States.  If,  in  her  existing  treaty  with  the  United  States, 
there  are  any  stipulations  on  her  part,  the  performance  of 
which  would  conflict  with  the  recognition  which  she  thus 
made,  and  the  neutrality  which  she  thus  assumed,  the  ques 
tion  might  arise,  between  her  and  the  Confederates,  how  far 
she  had  a  right,  under  the  law  of  nations,  to  perform  those 
stipulations  without  a  breach  of  her  neutrality.  She  knew 
that,  at  the  date  of  her  present  treaty  with  the  United  States, 
all  the  ports  in  the  seceding  States,  so  called,  were  in  the  pos 
session  of  the  general  government,  and  that  the  duties  there 
paid  were  part  of  the  common  funds  of  the  whole  United 
States.  She  knew  that  at  the  time  of  her  recognition  those 
ports  were  in  the  possession  of  the  insurgents,  who  claimed  to 
regulate  the  commercial  intercourse  there,  and  to  appropriate 
the  revenues  derived  therefrom  to  other  uses  than  to  those  of 
the  United  States.  And  she  knew  also  how  the  revenue  of  the 
United  States  would  be  injuriously  affected,  by  the  facilities 
for  smuggling  into  the  Northern  States  goods  introduced 
through  those  ports,  if  a  free  commerce  were  carried  on  there. 
Yet,  by  her  recognition  of  the  Confederate  States  as  an  exist 
ing  power,  she  acknowledges  those  ports  to  be  the  ports  of  the 
party  in  possession,  and  claims  the  right,  as  a  neutral  nation, 
to  enter  those  ports,  and  any  others  which  may  be  opened  by 


35 

the  Confederate  States,  with  her  ships  and  goods,  unless  the 
United  States  government  shall  enforce  its  attempts  to  sup 
press  the  insurrection  there  by  an  efficient  blockade,  precisely 
as  she  would  be  authorized  to  do  in  the  case  of  two  long  exist 
ing  independent  nations  contending  in  war,  and  to  which  she 
held  the  relation  of  neutrality.  The  United  States  are  at 
tempting  to  keep  up  such  a  blockade. 

It  is  true  that  the  United  States  were  not  compelled  to  re 
sort  to  the  blockade  by  reason  of  her  recognition.  The  inten 
tion  to  blockade  was  proclaimed  on  the  19th  of  April,  which 
was  before  the  recognition.  But  it  is  also  true,  we  think, 
that  that  recognition,  which  was  in  May,*  was  in  no  manner 
influenced  by  the  implied  recognition  arising  from  the  block 
ade.  Her  recognition  of  the  insurgents  as  a  belligerent  party 
has  therefore,  to  this  extent,  by  her  voluntary  act,  given  them 
the  standing  of  a  nation,  although  there  is  no  acknowledg 
ment  of  their  independence.  The  blockade  itself  would  not 
necessarily  have  done  this ;  and  but  for  the  recognition,  it 
might  have  been  terminated  at  pleasure,  so  far  as  Great  Brit 
ain  was  concerned,  and  any  other  measure  of  coercion  have 
been  substituted. 

It  has  been  said,  without  much  consideration,  that  British 
ships  would  have  had  a  right  to  resort  to  those  ports  without 

*  There  has  been  an  attempt  to  controvert  the  position  in  the  article  on  "  Habeas 
Corpus  and  Martial  Law  "  in  oar  last  number,  that  Mr.  Chief  Justice  Taney  ought, 
in  Merryman's  case,  to  have  taken  notice  of  the  existence  of  the  war.  The  position 
itself  is  of  Very  little  importance  to  the  argument,  —  which  was  to  show  that  the 
refusal  of  General  Cadwalader  to  produce  his  prisoner  was  sustained  by  sound 
principles ;  for  the  Chief  Justice  very  plainly  intimated  that,  if  General  Cadwala 
der  had  himself  undertaken  to  suspend  the  habeas  corpus,  (in  other  words,  to  deny 
his  liability  to  bring  in  his  prisoner,)  he  would  not  have  taken  the  trouble  to  argue 
the  question.  But  it  appears  that  the  Lord  Chancellor  and  other  legal  authorities 
in  England  had  found  out  that  war  existed  here  some  time  before  Merryman's  case 
came  before  the  Chief  Justice,  which  was  on  the  28th  day  of  May.  And  as  the 
information  respecting  the  facts  which  served  to  show  its  existence  was  not  con 
fined  exclusively  to  that  country,  perhaps,  if  Mr.  Chief  Justice  Taney  had  inquired, 
he  might  have  found  it  out  also. 


36 

any  such  recognition,  if  there  was  not  an  actual  blockade,  be 
cause,  the  right  of  secession  being  denied  by  the  United  States, 
they  are  still  ports  of  entry  under  the  laws  of  the  United 
States,  the  President  having  no  power  to  repeal  the  laws  con 
stituting  them  ports  of  entry.  It  is  readily  conceded  that  the 
President  has  no  power  to  repeal  a  law  ;  but  we  have  already 
suggested  that  he  might,  by  reason  of  the  insurrection,  which 
prevented  the  collection  of  the  duties,  and  for  the  purpose  of 
suppressing  that  insurrection,  close  the  ports  by  a  proclama 
tion,  which  all  foreign  nations  that  did  not  recognize  the  bel 
ligerent  status  of  the  Confederate  States  would  be  bound  to 
respect.  If  there  was  in  fact  a  doubt  respecting  his  constitu 
tional  power,  the  intercourse  of  foreign  nations  with  the  United 
States  is  through  the  Executive,  and  they  are  not  authorized 
to  go  behind  his  acts,  and  to  allege  that  they  are  nugatory,  be 
cause  under  the  provisions  of  the  Constitution  a  power  which 
he  attempts  to  exercise  is  vested  only  in  Congress.*  There  is 
no  need,  however,  of  saying  this  in  a  curt  or  spicy  manner. 

Moreover,  without  regard  to  any  question  of  right  legally  to 
close  the  ports,  foreign  nations  could  not  claim  to  enter  those 
ports,  as  ports  of  the  United  States,  after  they  had  been  noti 
fied  by  the  Executive  that  they  could  not  make  their  entries 
there  under  the  authority  of  the  United  States,  —  that  duties 
paid  there  would  be  paid  to  insurgents,  —  and  that  clearances 
there  must  be  taken  from  parties  at  war  with  the  United  States ; 
for  which  reason,  and  for  the  suppression  of  the  insurrection, 
entries  were  forbidden. 

But  the  burden  of  the  recognition  seems  not  to  be  alto 
gether  upon  the  United  States.  Great  Britain  appears  there- 

*  Mr.  Jefferson  Davis  understands  this.  In  his  first  message  to  the  Confederate 
Congress,  he  said  that  the  proclamation  of  President  Lincoln  was  a  plain  declaration 
of  war,  which  he  was  not  at  liberty  to  disregard,  because  of  his  knowledge  that, 
under  the  Constitution,  the  President  was  usurping  a  power  granted  exclusively  to 
Congress.  "He  is  the  sole  organ  of  communication  between  that  country  and 
foreign  powers." 


37 

by  to  have  subjected  her  merchant-vessels  not  only  to  a  right 
of  visit  to  ascertain  their  nationality,  but  to  a  right  of  search 
and  capture,  in  the  same  manner,  and  to  the  same  extent,  as 
she  would  have  done  had  she  acknowledged  their  indepen 
dence.  If  the  United  States  must  accord  to  her  the  rights  of 
a  neutral  nation,  by  an  efficient  blockade,  in  order  to  exclude 
her  vessels  from  the  Southern  ports,  they  must  certainly  have 
the  rights  of  a  belligerent  against  a  neutral,  and  may  capture, 
in  her  merchant-ships,  goods  the  property  of  the  enemy,  all 
articles  known  as  contraband  of  war,  and  all  persons  whose 
carriage  by  the  neutral  is  not  in  strict  accordance  with  the 
neutrality. 

The  privateers  commissioned  by  Mr.  Jefferson  Davis  may, 
in  like  manner,  search  British  merchant-vessels  with  similar 
rights,  and  for  any  abuse  of  the  power  her  reclamation  for 
damages  is  upon  "King  Cotton,"  if  he  is  not  in  the  mean 
time  consumed  by  his  own  or  some  other  fires. 

Whether  the  Confederate  privateers  will  also  be  authorized 
to  capture  such  loyal  citizens  of  the  States  which  have  seceded 
as  may  be  found  on  board  of  British  vessels,  —  but  having  no 
military  or  hostile  character  except  as  they  are  citizens  of  the 
United  States,  —  and  turn  them  over  to  the  Confederate  gov 
ernment  as  prisoners  at  twenty-five  dollars  per  head,  according 
to  the  tenor  of  the  law  under  which  they  are  commissioned,  is 
perhaps  not  so  clear.  Upon  the  principle,  or  want  of  principle, 
of  what  the  London  Times  now  calls  the  "  antiquated  law,"  by 
which  Great  Britain  claimed  a  right  to  search,  and  take  her 
subjects  from,  the  vessels  of  the  United  States,  she  would  be 
bound  to  admit  the  right  of  the  United  States  to  take  their  citi 
zens  from  her  vessels ;  and  giving  equal  rights  to  the  Confed 
erate  States,  the  question  would  arise  whether  all  citizens  of 
the  seceded  States  are  included  within  the  rule.  This  as 
sumption  of  burdens,  however,  is  her  affair,  not  ours.  We 
merely  advert  to  it  as  one  of  the  incidents  which  attends  the 
recognition. 


38 

It  seems  very  apparent,  from  what  we  have  stated,  that  the 
recognition  of  the  Confederate  States  as  a  belligerent  power 
has  substantially  the  effect  of  an  acknowledgment  of  their 
independence,  except  that  it  does  not  authorize  a  demand  of 
diplomatic  intercourse  and  the  formation  of  treaties.  How  far 
was  such  an  early  recognition  justified  by  history  ? 

The  long  civil  war  of  her  South  American  Colonies  against 
Spain,  and  their  establishment  of  independent  governments  de 
facto,  required  a  recognition  of  them  by  the  United  States. 
Lord  John  Russell  referred  to  the  recognition  of  Greece,  in 
her  war  against  Turkey,  as  furnishing  a  precedent.  We  are 
not  advised  that  he  referred  to  any  other.  But  the  precedent 
fails  entirely,  except  as  to  the  fact  of  that  kind  of  recognition. 
Greece  had  no  share  nor  voice  in  the  government  of  herself, 
still  less  in  governing  Turkey  at  the  same  time.  She  had  not 
furnished  three  quarters  of  the  Sultans  who  within  less  than 
a  century  had  occupied  the  throne  at  Constantinople,  and  she 
had  not,  by  one  enginery  or  another,  shaped  the  legislation  of 
the  great  divan  of  the  Turkish  empire  so  as  to  suit  her  pur 
poses,  in  three  quarters  of  the  political  measures  adopted  there 
during  the  same  time.  No  state  had  been  annexed  to  the  em 
pire  for  her  aggrandizement,  and  to  give  her  political  strength ; 
and  no  war  had  been  waged  for  the  acquisition  of  Mexican 
or  other  territory  in  order  that  she  might  diffuse  through  it 
her  peculiar  institutions.  On  the  contrary,  she  had  been 
subjugated,  though  not  entirely  conquered ;  subdued,  with 
the  exception  of  the  almost  wild  inhabitants  of  her  mountain 
fastnesses  ;  and  ground  into  the  dust  by  the  iron  heel  of  a 
military  oppression  which  spared  neither  age  nor  sex,  —  which 
wrested  from  labor  the  reward  of  its  toil,  and  snatched  from 
hunger  the  morsel  necessary  to  save  it  from  becoming  star 
vation. 

This  people  rose  up  in  their  might  against  their  oppressors,  in 
1821,  reasserting  their  national  existence ;  and  after  a  warfare 
of  more  than  four  years,  —  a  warfare  of  immeasurable  atrocity 


39 

on  the  part  of  the  Turks,  and  almost  corresponding  ferocity  on 
the  part  of  the  Greeks,  —  a  warfare  which  placed  Missolonghi 
and  Navarino  on  the  page  of  history  by  the  side  of  Marathon, 
and  immortalized,  among  many  others,  the  names  of  Mavro- 
cordato,  Colettis,  Kanaris,  Botzaris,  and  Miaulis,  —  the  British 
government  issued  "  a  decided  declaration  of  neutrality  "  be 
tween  the  belligerents. 

The  conclusion  seems  to  follow,  that  the  acknowledgment  of 
a  belligerent  status  of  the  Confederation,  before  the  adminis 
tration  of  President  Lincoln  had  had  time  to  determine  upon 
its  measures  and  organize  its  forces  for  the  suppression  of  the 
insurrection,  —  with  the  attempt  to  carry  on  a  neutral  com 
merce  with  the  ports  within  its  limits,  which  ports  are  de  jure 
still  within  the  United  States  and  under  the  jurisdiction  of  that 
government,  and  were  only  de  facto  without  their  jurisdiction, 
by  the  force  of  an  insurrection  of  from  four  to  six  months' 
duration,  —  is  entirely  without  a  precedent,  and  might  well  be 
deemed  a  grave  ground  of  offence  to  the  United  States,  had 
not  the  blockade  been  previously  instituted.  It  has  undoubt 
edly  been  the  cause  of  deep  feeling  among  the  people.  We 
are  aware  that  Dr.  Phillimore  says :  "  There  is  no  proposition 
of  law  upon  which  there  exists  a  more  universal  agreement  of 
all  jurists  than  upon  this ;  viz.  that  this  virtual  and  de  facto 
recognition  of  a  new  state  gives  no  just  cause  of  offence  to  the 
old  state,  inasmuch  as  it  decides  nothing  concerning  the  as 
serted  rights  of  the  latter.  For  if  they  be  eventually  sustained 
and  made  triumphant,  they  cannot  be  questioned  by  the  third 
power,  which,  pending  the  conflict,  has  virtually  recognized 
the  revolted  state."  *  But  he  is  speaking  of  such  recognitions 
as  were  made  by  Great  Britain  of  the  South  American  Colo 
nies,  after  a  struggle  between  them  and  Spain  of  about  twelve 
years ;  and  he  refers  to  President  Monroe's  message  of  De 
cember,  1823,  and  to  the  speeches  of  Mr.  Canning  and  Sir 

*  2  Phill.  on  International  Law,  18. 


40 

James  Mackintosh  upon  that  subject,  as  his  authorities  for  the 
proposition. 

A  recognition  following  soon  after  the  breaking  out  of  an 
insurrection,  and  where  from  the  peculiar  circumstances  there 
are  special  difficulties  in  organizing  the  forces  of  the  govern 
ment  for  the  suppression  of  it,  has  the  effect  of  giving  an  en 
couragement  to  it,  which  a  nation  in  amity  with  the  existing 
government,  and  desirous  of  continuing  that  relation,  is  not 
authorized  to  give. 

The  British  government  were  as  little  prepared  for  the 
breaking  out  of  the  insurrection  in  India  as  the  United  States 
were  for  that  of  the  South ;  but  the  arm  of  the  government 
was  not  paralyzed,  for  the  time,  by  a  complicity  of  Cabinet  offi 
cers  with  the  insurrection,  and  by  such  a  state  of  inaction,  if 
not  complicity,  on  the  part  of  the  head  of  the  administration, 
that  nothing  effective  could  be  accomplished  to  arrest  it  until 
the  traitors  of  the  Cabinet  had  been  forced  to  send  in  their  un 
willing  resignations.  Besides,  the  available  military  force  of  the 
British  near  the  scene  of  warlike  operations  was  much  more 
readily  concentrated,  and  comparatively  of  much  greater  effi 
ciency,  than  that  of  the  United  States ;  and  (excepting  native 
troops)  it  had  few  or  no  traitors  in  it.  Still,  with  all  these 
advantages,  the  British  power  in  India  was  for  a  considerable 
period  shaken  to  its  foundation,  and  it  was  said  in  high  quar 
ters  that  "  India  was  to  be  reconquered."  Now  suppose  that, 
at  about  the  time  when  Havelock  began  to  move  effectively  for 
the  suppression  of  the  rebellion,  some  member  of  Congress  had 
arisen  in  his  place,  and  proposed  a  formal  acknowledgment  of 
the  independence  of  British  India.  That  would  have  been  but 
the  act  of  an  individual  legislator,  who,  not  being  the  author 
ized  exponent  of  the  views  of  the  administration,  could  in  no 
wise  compromise  the  government  itself.  But  suppose  the  au 
thorized  Cabinet  officials  had  thereupon,  if  not  in  hot  haste, 
yet  under  no  circumstances  of  necessity,  proceeded  to  declare 
that  the  United  States  had  concluded  to  recognize  the  king  of 


41 

Delhi  and  his  adherents  as  belligerents.  The  English  govern 
ment  would  undoubtedly  have  regarded  this  as  an  evidence  of 
hostility,  not  entirely  rebutted  by  any  proclamation  of  strict 
neutrality  which  might  have  accompanied  it.  Yet  such  a  pro 
ceeding  would  not  have  given  courage  and  confidence  to  his 
Majesty  of  Delhi  and  his  confederates  to  persevere  in  their 
rebellion. 

Such  are  some  of  the  relations  of  the  United  States,  domes 
tic  and  foreign,  arising  from  the  insurrection  in  the  Southern 
States,  as  they  exist  at  the  present  time.  What  are  the  rea 
sonable  speculations  for  the  future  on  this  subject  ? 

The  Confederate  War  Secretary,  upon  the  occasion  of  the 
bombardment  of  Fort  Sumter,  prophesied  that  the  Confeder 
ate  flag  would  float  over  the  dome  of  the  old  Capitol  before  the 
first  of  May ;  and  he  added :  "  Let  them  try  Southern  chiv 
alry,  and  test  the  extent  of  Southern  resources,  and  it  might 
float  eventually  over  Faneuil  Hall  itself."  Well,  Southern 
chivalry  has  been  tried.  It  began  by  stealing  all  the  public 
property  it  could  lay  its  hands  on,  and  then  issuing  letters  of 
marque  and  reprisal  before  a  particle  of  property  had  been 
taken  by  the  United  States,  or  any  injury  had  been  done  to 
the  Confederacy  which  could  by  any  possible  construction 
warrant  reprisals.  It  has  proceeded  by  the  confiscation  of  the 
property  of  those  who,  having  faith  in  the  securities  of  South 
ern  States  and  Southern  people,  had  invested  in  such  State 
securities,  or  given  credit  to  traders  for  merchandise  ;  and 
this  without  regard  to  any  act  done  by  such  holders  of  stocks 
or  creditors,  but  merely  because  certain  people  of  the  South 
ern  States  chose  to  rebel  against  the  government  of  the  United 
States,  that  government  resisted  the  attempt,  and  the  stock 
holders  and  creditors  were,  ever  had  been,  and  still  remained 
citizens  of  the  United  States.  Chivalry  finds  its  only  justifi 
cation  for  this  seizure  of  private  property  in  the  fact,  that  the  - 
government  under  which  all  the  parties  have  heretofore  lived, 
and  to  which  all  acknowledged  a  common  allegiance,  resists 
6 


42 

the  efforts  of  the  debtors  to  accomplish  a  revolution.  Chivalry 
has  been  tested  in  arms,  as  well  as  in  legislation,  and  it  mani 
fests  itself  in  masked  batteries  and  ambuscades,  the  hoisting 
of  false  flags  and  signals,  and  all  manner  of  false  pretences 
for  the  purpose  of  securing  an  unequal  advantage.  Chivalry 
thus  far  is  cooped  up  within  the  limits  of  the  States  seceding, 
except  that,  in  violation  of  all  its  State-rights  theory,  it  is 
insisting  that  Missouri  and  Kentucky,  against  the  expressed 
will  of  the  people  of  those  States,  shall  join  in  the  rebellion  ; 
and  it  has  thereupon  attempted  to  overrun  the  former,  and 
has  made  a  lodgement  in  the  southern  portion  of  the  latter. 
As  an  offset  to  this,  it  has  lost  Western  Virginia,  considerable 
portions  of  the  eastern  part  of  that  State,  and  several  positions 
on  the  seaboard  in  other  States.  It  stands  now,  and,  so  far 
as  at  present  can  be  judged,  it  is  likely  to  stand,  very  much 
on  the  defensive,  unless  Southern  "  resources "  come  to  the 
rescue. 

Thus  far  Southern  resources  have  not  shown  to  much  bet 
ter  advantage  than  Southern  chivalry.  Proposals  for  a  loan 
of  fifteen  millions  of  dollars  are  said  to  have  realized  ten 
millions.  A  project  for  a  loan  of  cotton  to  the  amount  of 
one  hundred  millions  is  admitted  to  be  a  failure,  because  the 
"  king  "  is  shut  up  on  a  barren  throne  within  his  dominions, 
and  cannot  there  be  made  negotiable.  A  tax  of  fifteen  mil 
lions  remains  to  be  collected  in  such  manner  as  it  may  be. 
In  the  mean  time  an  issue  of  one  hundred  millions  of  Con 
federate  bonds  has  no  convertibility  into  coin,  and  no  basis 
of  redemption,  and  can  therefore  have  no  credit  outside  the 
limits  of  the  Confederacy,  and  none  within  it  except  such  as 
is  enforced  by  the  necessities  of  the  war.  Banks  have  sus 
pended  specie  payments,  and  coin  of  all  descriptions  is  at  an 
extravagant  premium.  External  trade  is  nearly  all  cut  off  by 
means  of  the  blockade,  a  few  arrivals  and  clearances,  through 
a  surreptitious  evasion  of  it,  furnishing  only  an  exceedingly 
limited  supply  of  munitions  of  war  and  foreign  goods.  Of 


43 

manufacturing  and  domestic  trade  there  can,  under  these 
circumstances,  be  but  a  very  small  amount,  except  in  connec 
tion  with  supplies  for  the  army ;  and  many  descriptions  of 
what  are  ordinarily  regarded  as  the  necessaries  of  life  are,  in 
particular  districts,  at  almost  famine  prices.  On  the  other 
hand,  the  agricultural  crops  for  the  present  year  are  supposed 
to  have  been  abundant,  so  that  there  is  no  prospect  of  the  ter 
mination  of  the  war  by  absolute  starvation. 

In  discussing  the  question  of  the  probable  duration  of  the 
war,  it  has  been  suggested  that  the  people  of  the  South  are 
fighting,  or,  what  is  the  same  thing,  believe  they  are  fighting, 
for  their  liberties  ;  and  that,  in  all  controversies  of  such  a 
character,  there  is  a  pertinacity  of  purpose,  which  continues 
the  contest  without  resources,  and  under  all  deprivations  and 
reverses,  until  a  final  victory  is  achieved.  One  of  the  re 
sources  of  the  leaders  of  the  rebellion  has  been  the  repre 
sentation  to  the  great  mass  of  their  misguided  followers,  that 
this  is  a  war  of  subjugation,  and  that,  if  they  fail  to  fight  to 
the  last  extremity,  their  liberties  will  be  lost.  But  the  sober 
second-thought,  if  that  thought  ever  comes,  will  show  them 
that  the  termination  of  the  war  will  leave  the  several  States 
which  have  attempted  to  secede  in  the  possession  of  all  their 
rights  of  sovereignty,  and  in  all  the  control  of  their  municipal 
affairs  which  they  have  ever  had  since  the  adoption  of  the 
Constitution,  —  except  so  far  as  the  rebellion  has  introduced 
revolution  into  any  particular  State,  through  which  some  of 
them  may  possibly  find  themselves  dismembered  by  the  action 
of  their  own  people,  —  and  except  as  the  situation  and  legal 
condition  of  their  slaves  may,  to  a  very  material  extent,  be 
changed,  if  the  war  is  protracted. 

That  the  war  must  continue  on  the  part  of  the  North  until 
the  navigation  of  the  Mississippi,  from  its  sources  to  its  mouth, 
is  secured  to  the  people  of  the  Northwest,  so  that  no  hostile 
power  upon  its  banks  can  impede  such  navigation,  or  until 
the  Northern  States  are  rendered  powerless  to  prosecute  the 


44 

contest  to  a  successful  issue,  may  be  assumed  to  be  certain. 
The  promptitude  with  which  batteries  were  erected  on  the 
banks  of  that  river  immediately  after  the  outburst  of  the  se 
cession,  for  the  purpose  of  controlling  and  closing  the  naviga 
tion  of  it,  and  thereby  coercing  the  people  of  the  Northwestern 
States  into  submission  to  the  rebel  power,  shows  conclusively 
that  there  can  be  no  security  for  the  free  navigation  of  it  ex 
cept  by  holding  it,  and  its  banks  on  either  side,  within  the 
jurisdiction  of  the  United  States.  The  great  facilities  for 
smuggling,  through  the  entry  of  goods  into  the  Southern  ports 
and  their  subsequent  introduction  into  the  North  along  such 
an  extensive  line  of  inland  frontier  as  would  exist  on  a  sepa 
ration  of  the  States,  —  and  the  fact  that  rival  interests  would 
create  sources  of  constant  irritation,  —  furnish  other  reasons 
why  the  eventual  establishment  of  the  authority  of  the  United 
States  must  be  sought  by  the  Northern  States,  even  through  a 
protracted  contest,  and  at  an  enormous  sacrifice.  With  vic 
tory  secured,  the  North  would  rise  up  with  renewed  energy, 
and  with  its  own  material  interests  comparatively  unimpaired, 
except  by  a  decrease  in  the  demand  for  articles  heretofore 
furnished  to  the  South. 

Not  so  with  the  South.  With  a  protracted  contest,  even 
victory  is  a  substantial  defeat.  Cotton,  which  has  been  sup 
posed  to  be  the  great  resource  to  carry  them  through  the  rev 
olution,  has,  as  we  have  seen,  thus  far  proved  a  failure.  It 
cannot  be  applied  as  a  means  to  carry  on  the  war  to  any  great 
extent,  except  by  a  conversion  into  money  or  other  articles  ; 
and  as  this  could  not  be  effected,  the  crop  of  the  present  year 
remains  on  hand.  Only  a  certain  amount  of  cotton,  more  or 
less,  is  required  for  the  consumption  of  the  world,  and  this 
crop,  if  it  could  have  found  a  market,  would  have  supplied 
the  demand  in  England,  France,  and  the  Northern  States. 
With  the  diminished  demand  for  manufactured  articles,  the 
supply  from  other  quarters  has  thus  far  sufficed,  so  that  no 
great  distress  has  supervened  from  the  want  of  Southern  cot- 


45 

ton ;  not  more,  probably,  than  ordinarily  occurs  in  the  course 
of  a  commercial  revulsion,  perhaps  not  so  much.  Another 
full  crop,  if  raised  before  this  is  disposed  of,  will  operate  as  a 
reduction  of  its  ordinary  value,  by  furnishing  an  excess  of 
supply  for  the  existing  machinery.  In  the  mean  time,  every 
year's  delay  in  getting  it  to  market  stimulates  the  cultivation 
of  cotton  abroad.  If  the  present  state  of  things  continues  two 
or  three  years,  the  competition  of  foreign  cotton  will  reduce 
the  price  to  perhaps  two  thirds,  or  even  one  half,  of  the  rate 
heretofore  paid  ;  and  with  this  reduction  comes  a  correspond 
ing  reduction  in  the  value  of  slaves  and  the  value  of  planta 
tions.  It  is  for  the  interest  of  Great  Britain  to  foster  and 
protect  the  growth  of  cotton  in  her  own  dominions,  and  the 
production  of  a  sufficient  amount  within  her  territory  once 
secured,  American  cotton  will  not  be  allowed  to  ruin  that 
source  of  national  wealth. 

Another  resource  of  the  South,  which  has  thus  far  been  the 
means  of  strength  in  the  prosecution  of  the  war,  is  slavery. 
The  slaves  are  the  producers,  and  the  masters  can  all  the  bet 
ter  be  spared  to  fill  the  ranks  of  the  army.  It  will  continue 
to  be  so  until  the  troops  of  the  United  States  penetrate  the 
slave  territory.  Until  that  time,  proclamations  for  emancipa 
tion,  from  whatever  source,  will  be  of  no  avail.  The  Presi 
dent  and  Congress  have  no  more  authority  to  emancipate  the 
slaves,  than  the  writer  of  this  article.  An  attempt  so  to  do 
would  be  a  gross  usurpation  of  power.  The  general  at  the 
head  of  the  army  has  no  right  to  emancipate  them,  except 
as  an  incident  to  military  occupations  and  operations  ;  and 
whatever  theory  may  exist  on  that  subject,  he  can  accomplish 
nothing  further  than  he  penetrates  the  country.  So  far  as  he 
does  this,  the  question  of  his  right  to  issue  a  proclamation  for 
that  purpose  is  not  very  material.  The  emancipation  will 
take  care  for  itself.  He  cannot  fight  the  rebels  successfully, 
and  at  the  same  time  aid  them  to  hold  their  slaves  ;  and  the 
result  is  practical  freedom.  If  they  avail  themselves  of  it,  be- 


46 

cause  their  masters  have  escaped  from  them,  then  there  is  no 
fugitive  slave  law  to  return  them  after  the  rebellion  is  sup 
pressed.  But  if  they  remain  until  their  masters  have  resumed 
their  occupation  under  State  authority  on  the  return  of  peace, 
this  practical  freedom  is  not  likely  to  prevent  their  return  to 
bondage.  When,  however,  the  Northern  army  has  made  a 
successful  march  through  Virginia  into  South  Carolina,  there 
is  another  result,  which,  while  it  cannot  be  contemplated  but 
with  horror,  must,  if  it  occur,  be  charged  to  those  whose  mad 
ness  will  have  brought  it  upon  them. 

The  great  resource  upon  which  the  South  has  relied  to 
carry  it  successfully  through  a  revolution,  has  been  the  inter 
ference  of  Great  Britain  and  France.  It  was  assumed  that  cot 
ton  was  a  king  at  whose  feet  the  people  of  Europe  must  pros 
trate  themselves  and  their  principles,  and  that,  if  Southern 
chivalry  could  not  fight  its  own  battles,  they  would,  through 
this  instrumentality,  be  fought  for  it  by  other  powers.  It  re 
mains  to  be  seen  whether  this  resource  will  be  made  available 
to  the  accomplishment  of  the  object.  What  is  the  probability 
of  such  interference  ? 

Without  assuming  the  office  of  a  prophet,  we  venture  to  ex 
press  a  confident  belief  that  there  will  be  no  immediate  change 
in  the  relations  which  at  present  exist  between  the  United 
States  and  foreign  powers,  unless  some  new,  and  at  present 
improbable,  complication  of  those  relations  shall  give  rise  to 
new  and  grave  causes  of  hostility. 

The  sympathy  of  Russia  with  the  United  States  has  been 
manifested  in  a  most  friendly  and  generous  manner. 

Spain,  not  only  in  her  proclamation  of  neutrality,  but  in  the 
enforcement  of  it  by  the  release  of  the  prizes  sent  into  Cien- 
fuegos  by  the  privateer  Sumter,  has  given  conclusive  evidence 
that  she  has  no  sympathy  with  the  rebellion. 

With  respect  to  France,  there  has  been  no  supposition  that 
there  was  danger  of  collision.  The  course  thus  far  pursued  by 
Napoleon  III.,  and  by  the  people  of  the  French  empire,  while 


47 

it  has  evinced  a  deep  solicitude  respecting  the  effect  which  the 
civil  war  might  have  upon  the  material  interests  of  France, 
has  at  the  same  time  furnished  satisfactory  evidence  that  the 
French  government  and  the  French  people  —  with  some  excep 
tions  certainly  among  their  press  and  people  —  are  disposed  to 
accord  to  the  United  States  all  their  rights,  upon  the  most  fair 
interpretation  of  the  law  of  nations. 

What  is  the  probability  that  Great  Britain  will  belie  all  her 
professions  in  favor  of  free  principles,  and  tarnish  her  fair  fame 
by  an  alliance  with  a  rebellion,  which,  caused  almost  entirely 
by  the  opposition  of  the  North  to  the  extension  of  slavery,  has 
organized  a  Confederacy  with  slavery  for  its  chief  corner-stone, 
and  which,  if  successful  in  establishing  its  independence,  will 
soon  insist  upon  opening  the  slave-trade  ? 

There  are  certainly  no  grave  causes  of  controversy  or  hostil 
ity  between  the  United  States  and  Great  Britain.  More  than 
two  generations  of  mankind  have  passed  away  since  the  period 
of  the  American  Revolution,  and  very  few  remain  within  the 
confines  of  this  world  whose  fading  memories  retain  even  a 
faint  remembrance  of  that  contest.  The  controversies  which 
led  to  the  war  of  1812  have  either  been  amicably  settled,  or 
have  fallen  out  of  sight,  and  there  can  be  no  rankling  bitter 
ness  which  arose  out  of  them  still  remaining  to  find  expres 
sion  in  the  promotion  of  another  war.  Most  of  those  who,  on 
either  side,  were  actively  engaged  in  that  contest,  have  laid 
their  hostility  to  rest  in  the  bosom  of  their  common  mother, 
—  earth.  That  all  causes  of  difference  arising  from  two  wars, 
and  from  divers  controversies  respecting  boundaries,  and  other 
matters  of  dispute,  had  left  no  evil  feeling  on  the  part  of 
the  people  of  the  United  States,  or  at  least  the  Northern  and 
Western  portion  of  them,  was  made  most  clearly  apparent 
upon  the  occasion  of  the  visit  of  the  Prince  of  Wales  to  this 
country  in  1860.  There  could  not  possibly  be  a  more  exuber 
ant  manifestation  of  perfect  friendship  than  was  exhibited,  not 
only  by  all  persons  in  official  station,  but  by  the  great  masses 


48 

of  the  people,  of  all  classes  and  conditions,  from  the  time  when 
the  heir  apparent  set  his  foot  upon  the  soil  of  Michigan,  until 
the  moment  when  it  left  its  last  imprint  upon  that  of  Maine 
on'  his  departure  homeward.  If  there  was  any  one  who  was 
weak  enough  to  suppose  that  the  grand  pageant,  which  con 
tinued  almost  without  interruption  from  day  to  day  during  his 
progress  through  the  country,  —  in  which  President  and  Cabi 
net,  governors  and  judges,  senators  and  representatives,  vied 
with  one  another  in  proffers  of  respect  and  courtesy,  and  in 
which  the  great  body  of  the  people  made  the  welkin  ring  with 
their  shouts  of  welcome,  —  was  a  mere  demonstration  of  joy  at 
the  sight  of  a  live  prince,  or  a  weak  cringing  to  royalty,  he 
must  have  greatly  misunderstood  the  signs  of  the  times.  The 
enthusiasm,  which  seemed  almost  unbounded,  while  it  was  un 
doubtedly  a  spontaneous  testimonial  of  respect  to  the  Queen, 
showing  the  popular  estimation  of  her  Majesty  as  a  sovereign, 
a  woman,  a  wife,  and  a  mother,  was  at  the  same  time  a  dem 
onstration  of  gushing  good  feeling  for  the  government  of  the 
country  and  its  people  at  large.  Old  causes  of  feud  were  for 
gotten, —  rival  industrial  interests  were  for  the  time  but  as 
matters  for  a  generous  competition,  —  taunting  words,  which 
in  bygone  days  had  been  profusely  dispensed,  gave  place  to 
courteous  speech,  which  not  only  came  trippingly  from  the 
tongue,  but  which  welled  up  from  the  heart. 

There  was  certainly  no  little  cause  for  astonishment,  and 
there  might  well  be  no  little  revulsion  of  feeling,  on  the  part 
of  the  people  of  the  Northern  States,  when,  within  some  six 
months  afterward,  and  before  the  incoming  administration 
had  time  to  make  preparations  for  suppressing  the  insurrec 
tion,  there  was  an  effort  in  Parliament  to  give  strength  to  it, 
by  an  acknowledgment  of  the  independence  of  the  Confed 
eracy,  and  the  establishment  of  commercial  relations  with  it, 
which  found  large  countenance  from  the  English  press. 

It  may  be  admitted  —  it  is  undoubtedly  true  —  that  much 
of  this  offensive  demonstration  had  its  origin,  not  in  feelings 


49 

of  hostility,  but  in  a  belief  that  the  rebellion  must  succeed, 
and  in  anticipated  commercial  relations  with  the  new-born 
power  thus  proposed  to  be  baptized  into  the  great  national 
and  commercial  church  universal ;  which  was  —  even  upon 
the  supposition  of  its  existence  —  the  offspring  of  treason  and 
fraud,  lying  in  a  cradle  constructed  by  theft  and  robbery,  and 
rocked  and  nursed  by  African  slavery."  But  it  appeared  some 
what  remarkable  that  the  wise  politicians  who  were  thus  will 
ing  to  overlook  the  stigma  upon  the  parentage  of  the  bantling 
for  which  they  were  ready  to  stand  as  political  godfathers, 
should  at  the  same  time  have  ignored  the  fact  that  the  com 
mercial  intercourse  of  the  Northern  States  was  of  some  value 
to  Great  Britain,  and  that  this  was  likely  to  be  seriously  inter 
rupted  at  no  distant  day,  if  their  project  was  accomplished. 
It  may  be,  however,  that  they  supposed,  with  the  London 
Economist,  that  the  dismemberment  of  the  Union  would  par 
alyze  both  sections.  The  Economist,  while  disclaiming  any 
feeling  of  hostility,  very  frankly  admitted  its  joy  at  the  pros 
pect  of  the  dismemberment,  not  merely  on  account  of  the 
commercial  advantages  to  accrue  to  England,  but  because  it 
would  destroy  the  power  of  the  people  of  the  United  States, 
and  put  an  end  to  their  vain  boasting.  As  for  the  "boasting," 
it  is  quite  true  that  in  speeches  in  Congress,  in  inflammatory 
editorials,  in  fourth  of  July  orations,  lyceum  lectures,  and 
sometimes  in  things  called  sermons,  we  exhibit  enough,  and 
more  than  enough,  of  that  miserable  spirit ;  no  small  portion 
of  it  being  (if  regarded  at  all)  offensive  to  England  and  Eng 
lishmen,  although  it  is  specially  designed  for  home  consump 
tion.  But  there  are  at  least  two  things  to  be  considered  in 
extenuation.  We  know  what  people,  of  all  the  world,  have 
heretofore  set  us  the  example  in  this  respect ;  and  we  know 
also  from  what  people  in  bygone  and  later  days  have  come 
the  taunts  and  the  disparagement  which  have  given  rise  to 
no  small  portion  of  it.  But  when  we  gave  the  Prince  of 
Wales  his  great  ovation,  we  were  not  thinking  of  the  old 
7 


50 

inquiry,  "  Who  reads  an  American  book  ?  "  nor  of  the  char 
acteristics  which  have  more  recently,  over  the  water,  been 
assigned  to  "  our  American  cousins  "  and  their  democratic 
government.  Whatever  may  have  been  said  by  politicians  in 
Congress  or  out  of  Congress,  or  by  newspaper  correspondents 
or  editors,  or  in  great  and  small  orations,  furnishes  no  good 
reason  why  Great  Britain  should  interfere  on  the  Confederate 
side,  in  this  civil  war.  A  full  share  of  this  offensive  boasting 
has  had  its  location  south  of  Mason  and  Dixon's  line. 

It  was  for  a  long  time  expected  by  the  Southern  leaders 
that  Great  Britain  would  raise  the  blockade  to  procure  a  sup 
ply  of  cotton,  and  great  efforts  were  made  to  represent  that  it 
was  not  efficient.  We  had  been  at  some  pains  to  procure  sta 
tistics  on  which  to  base  a  trustworthy  estimate  of  the  supply  of 
cotton  which  will  be  received  in  Great  Britain  in  1862  from 
other  sources  than  the  Southern  States,  for  the  purpose  of 
showing  that  her  necessities  in  this  respect  would  furnish  no 
excuse  for  any  such  interference.  No  evil,  such  as  ordina 
rily  attends  a  commercial  crisis,  could  furnish  a  sufficient 
reason.  But  we  are  relieved  from  a  discussion  of  this  subject 
by  the  London  Economist,  which  —  referring  to  the  notion  of 
the  Southern  political  leaders,  "  that  by  starving  France  and 
England,  by  the  loss  and  suffering  anticipated  as  the  conse 
quences  of  an  entire  privation  of  the  American  cotton  sup 
ply,  they  will  compel  those  governments  to  interfere  on  their 
behalf,  and  force  the  United  States  to  abandon  the  blockade  " 
—  says :  — 

"  If  they  really  expect  such  a  high-handed  violation  of  all  inter 
national  usage  on  our  part,  we  can  only  say  their  leaders  ar.e  less  sen 
sible  and  experienced  men  than  we  have  hitherto  supposed.  There  is 
not  the  remotest  chance  that  either  power  would  feel  justified  for  a 
moment  in  projecting  such  an  act  of  decided  and  unwarrantable  hostil 
ity  against  the  United  States.  We  are  less  dependent  upon  the  South 
than  the  South  is  upon  us,  as  they  will  erelong  begin  to  discover.  It 
is  more  necessary  for  them  to  sell,  than  for  us  to  buy.  As  we  have 


51 

more  than  once  shown,  the  worst  that  can  happen  to  us  from  a  contin 
uance  of  the  blockade  will  be,  that  our  mills  will  have  to  work  two- 
thirds  time ;  and  it  is  by  no  means  sure  from  present  appearances 
whether  the  aggregate  demand  of  the  world  would  suffice  to  take  off 
much  more  than  three  fourths  of  a  full  production,  even  if  we  had 
cotton  in  abundance." 

The  allegation  that  the  blockade  has  not  been  so  far  effec 
tive  as  to  comply  with  the  rules  of  international  law  on  that 
subject,  if  it  may  have  been  true  at  some  places,  has  not  been 
so  to  the  extent  which  has  been  represented.  The  blockading 
force  has  in  most  instances  been  sufficient  to  make  any  open 
attempt  to  enter  or  leave  the  port  dangerous.  The  number  of 
arrivals  and  departures,  which  has  been  paraded  as  evidence 
of  its  inefficiency,  furnishes  no  proof  against  it.  Nearly  all  of 
them  have  been  fraudulent  evasions  of  the  blockade. 

It  is  not  incumbent  on  the  party  instituting  a  blockade  to 
station  a  force  at  all  the  inlets  and  petty  harbors  on  the  coast, 
where  there  is  no  recognized  port ;  where  no  entry  could  be 
made,  or  clearance  had,  in  time  of  peace ;  and  where,  of 
course,  if  any  commerce  were  carried  on,  it  would  be  smug 
gling,  and  not  a  lawful  commerce.  Any  running  into  and  out 
of  such  places,  in  order  to  avoid  the  danger  of  the  blockading 
force,  is  fraudulent,  and  has  no  tendency  to  show  that  the 
blockade  is  not  effective. 

Nor  is  it  necessary  that  the  blockading  force  should  be  such 
that  a  vessel,  taking  advantage  of  a  skilful  pilot  and  the  dark 
ness  of  midnight,  cannot  make  her  entry,  or  exit,  without 
being  discovered.  To  require  such  a  blockade  would  be  to 
require  an  impracticability.  Vessels  navigated  by  steam,  to 
say  nothing  of  sailing-vessels,  by  selecting  their  time,  can  in 
many  instances  run  a  blockade. 

Whether  the  contrivances  to  evade  the  blockade  are  by  the 
petty  codfish  hucksters  of  the  Anglo-American  colonies,  who 
fraudulently  clear  for  some  of  the  West  India  Islands,  and 
then  slyly  slip  into  Hatteras  or  some  other  inlet ;  or  whether 


52 

by  the  more  pretentious  "  greedy  merchants  "  of  Hartlepool  or 
some  other  "  pool  ".on  the  English  coast,  "  who  care  not  how 
things  go,  provided  they  can  but  satisfy  their  thirst  of  gain,"* 
and  who,  violating  at  the  same  time  the  laws  of  their  own 
government  and  those  of  the  United  States,  the  vaunted  prin 
ciples  of  British  freedom  and  the  proprieties  of  national  inter 
communication,  sneak,  in  the  darkness  of  night,  into  the  har 
bor  of  Savannah  or  of  Charleston,  for  the  sake  of  acquiring 
the  "  almighty  dollar  "  with  the  love  of  which  they  delight 
to  taunt  the  Yankees ;  —  it  does  not  rest  with  Great  Brit 
ain  to  allege  that  the  success  of  such  attempts,  however 
numerous,  by  those  whom  she  must  admit  to  be,  thus  far, 
her  unworthy  subjects,  can  show  an  insufficiency  of  the 
blockade. 

Almost  at  the  time  when  we  were  writing  the  last  sentence, 
the  foreign  relations  of  the  United  States  were  further  com 
plicated  by  the  seizure  of  Messrs.  Mason  and  Slidell,  on  board 
the  British  steamer  Trent,  on  her  passage  from  Havana  to  St. 
Thomas,  she  being  at  the  time  on  the  high  seas,  and  being  (it 
is  understood)  a  passenger  vessel,  owned  by  private  parties, 
but  carrying  the  British  and  foreign  mails  by  contract  with  the 
government. 

Messrs.  Mason  and  Slidell  had  recently  left  the  port  of 
Charleston,  in  a  vessel  belonging  to  parties  there,  for  the  pur 
pose  of  proceeding  to  Europe,  by  way  of  Havana,  as  "  Ambas 
sadors  of  the  Confederate  States,"  as  they  have  generally  been 
called ;  but  a  more  correct  designation  would  be,  as  the  agents 
or  commissioners  of  the  Confederate  government,  for  the  pur 
pose,  it  may  be  presumed  from  other  facts  too  numerous  here 
to  be  stated,  of  obtaining,  if  possible,  an  acknowledgment  of 
the  independence  of  the  Confederate  States,  —  of  communicat 
ing  with  their  agents  already  there,  —  and  of  aiding  in  the 
adoption  of  such  measures  as  might  promote  the  interests  of 
those  States  in  the  existing  war  with  the  United  States,  by  ne- 

*  Puffendorff,  cited  by  Sir  William  Scott,  1  Rob.  Adm.  Rep,  352. 


53 

gotiations  for  the  purchase  of  arms  and  munitions  of  war,  and 
their  transportation  to  the  ports  of  the  Southern  States. 

Mr.  Jefferson  Davis,  in  his  late  message  to  the  Confederate 
Congress,  speaks  of  them  as  "  the  distinguished  gentlemen 
whom,  with  your  approval,  at  the  last  session,  I  commissioned 
to  represent  the  Confederacy  at  certain  foreign  courts  " ;  and 
he  charges  the  United  States  with  having  "  violated  the  rights 
of  embassy,  for  the  most  part  held  sacred  even  among  barba 
rians,  by  seizing  our  ministers  whilst  under  the  protection  and 
within  the  dominions  of  a  neutral  nation."  It  may  be  noted 
that  this  shows  conclusively  that  their  original  destination  was 
Europe,  —  that  their  proceeding  to  Havana  in  the  first  in 
stance  was  merely  for  security,  or  convenience,  and  transship 
ment,  —  and  thus  that  their  voyage  on  board  the  Trent  was 
merely  a  continuation  of  a  voyage  from  Charleston  to  Europe. 
They  were  bearers  of  despatches,  also,  of  the  character  of 
which  we  shall  speak  hereafter. 

From  this  designation  of  them  as  "Ministers"  and  "Ambas 
sadors,"  in  the  message,  and  elsewhere,  it  was  but  a  matter  of 
course  that  much  of  the  discussion,  in  the  papers  of  the  day, 
has  been  upon  the  question  of  the  right  of  a  belligerent  to  stop 
the  ambassador  of  his  enemy.  The  right  is  asserted  by  Yattel. 
It  is  reasserted  by  Sir  William  Scott,  in  this  language :  — 

"  I  have  before  said,  that  persons  discharging  the  functions  of  am 
bassadors  are,  in  a  peculiar  manner,  objects  of  the  protection  and  favor 
of  the  law  of  nations.  The  limits  that  are  assigned  to  the  operations 
of  war  against  them,  by  Vattel,  and  other  writers  upon  those  subjects, 
are,  that  you  may  exercise  your  right  of  war  against  them,  wherever 
the  character  of  hostility  exists.  You  may  stop  the  ambassador  of 
your  enemy  on  his  passage ;  but  when  he  has  arrived,  and  has  taken 
upon  himself  the  functions  of  his  office,  and  has  been  admitted  in  his 
representative  character,  he  becomes  a  sort  of  middle-man,  entitled 
to  peculiar  privileges,  as  set  apart  for  the  protection  of  the  relations 
of  amity  and  peace,  in  maintaining  which  all  nations  are  in  some 
degree  interested." —  Case  of  the  Caroline,  6  Robinson's  Adm.  Rep. 
467,  468. 


54 

The  doctrine  thus  stated  may,  as  between  England  and  the 
United  States,  be  regarded  as  a  sound  principle  of  interna 
tional  law. 

"  You  may  stop  the  ambassador  of  your  enemy  on  his  pas 
sage  "  ?  When,  and  where,  and  on  what  passage,  may  you  stop 
him  ?  It  has  been  argued,  in  reference  to  this  case,  in  sub 
stance,  that  he  may  be  stopped  only  while  in  his  own  country, 
or  while  passing  through  the  country  with  which  his  govern 
ment  is  at  war,  or  on  the  high  seas  in  a  vessel  of  his  own  coun 
try  ;  and  that  in  this  case  the  stoppage  was  unlawful,  because 
the,  ambassador  when  in  a  neutral  vessel  is  in  a  neutral  terri 
tory.  Mr.  Jefferson  Davis  falls  into  this  error.  He  speaks,  as 
appears  in  the  extract  above  quoted,  of  seizing  "  our  ministers 
while  under  the  protection  and  within  the  dominions  of  a 
neutral  nation  "  ;  and  he  adds,  that  "  a  claim  to  seize  them  in 
the  streets  of  London  would  have  been  as  well  founded  as  that 
to  apprehend  them  where  they  were  taken,"  which  shows  that 
he  has  no  very  correct  notions  upon  the  subject.  It  is  readily 
perceived  that  no  possible  question  could  arise  respecting  the 
right  to  stop  the  ambassador  of  your  enemy,  as  you  may  stop 
any  other  enemy,  when  you  find  him  in  the  enemy's  territory; 
or  if  he  attempt  to  pass  through  your  own,  on  his  way  to  his 
destination.  There  is  as  little  doubt  that  you  may  not  inter 
fere  with  him  while  in  neutral  territory,  without  just  cause 
of  offence  to  the  neutral  power  whose  territory  protects  him ; 
and  no  question  whatever  that  a  neutral  vessel  on  the  high 
seas  is,  as  respects  belligerent  rights,  in  no  just  sense  neutral 
territory.  The  right  in  time  of  war  to  search  a  neutral  vessel 
which  may  reasonably  be  supposed  to  have  contraband  goods 
on  board,  and  to  capture  and  confiscate  the  vessel,  as  well  as 
the  goods,  shows  conclusively  a  marked  distinction  between 
the  vessel  and  the  territory  of  the  neutral,  the  latter  not  being 
the  subject  of  search,  and  of  course  not  of  seizure  and  of  con 
fiscation,  on  the  ground  that  munitions  of  war  are  found  there, 
—  even  with  evidence  that  they  were  intended  to  be  conveyed 


55 

to  the  enemy.  The  question  of  contraband,  or  not,  does  not 
arise  until  the  goods  are  on  their  transit,  and  out  of  the  lo 
cal  neutral  jurisdiction.  If  then,  as  a  matter  of  international 
law,  you  may  stop  the  ambassador  of  the  enemy,  you  may  stop 
him  on  his  outward  passage  while  on  board  a  neutral  vessel. 

But  the  further  question  immediately  presents  itself,  May 
you  stop  him  in  all  cases  where  you  find  him  thus  in  the 
neutral  vessel,  and  if  not,  upon  what  voyage  must  he  be  found 
in  order  to  the  exercise  of  this  right  ?  Vattel  and  the  text- 
writers,  in  laying  down  the  proposition,  could  not  have  con 
templated  merely  the  case  of  a  stoppage  on  a  voyage  from  one 
port  of  the  enemy  to  another  port  belonging  to  him,  because 
the  passage  of  an  ambassador  is  not  ordinarily  of  that  char 
acter.  Sir  William  Scott  evidently  did  not  so  apply  it,  be 
cause  he  was  not  speaking  with  even  the  most  remote  refer 
ence  to  any  such  case.  He  added,  as  we  have  seen,  "  But 
when  he  has  arrived,  and  has  taken  upon  himself  the  func 
tions  of  his  office  "  ;  showing  that  the  "  passage  "  he  had  in 
contemplation  was  a  passage  to  the  place  where  he  was  to 
exercise  those  functions.  This  shows  also  that  the  principle 
is  not  applicable  merely  to  an  ambassador  returning  in  a  neu 
tral  vessel  to  his  own  country  after  his  functions  have  ceased ; 
nor  to  the  case  of  an  ambassador  who,  after  his  reception  at 
the  neutral  court,  is  proceeding  to  another  neutral  port,  for 
a  temporary  purpose,  on  private  business,  —  for  that  is  the 
very  case  of  all  others,  if  there  be  one,  in  which  you  cannot 
stop  him,  because  his  character  of  ambassador  may  be  held  to 
continue,  and  protect  him,  as  if  he  were  still  in  the  neutral 
country  to  which  he  is  accredited. 

The  conclusion  would  seem  to  be,  that  he  may  be  stopped 
in  a  neutral  vessel,  on  the  high  seas,  on  his  way  to  the  coun 
try  to  which  he  is  sent,  before  his  arrival  and  reception,  and 
before,  therefore,  he  is  entitled  to  the  protection  of  the  neutral 
nation  to  which  he  is  accredited.  And  if  he  may  be  stopped 
when  proceeding  directly  from  his  own  port  in  a  neutral  ves- 


56 

sel,  it  is  not  material,  so  far  as  the  right  to  stop  is  concerned, 
that  he  has  touched  at  an  intermediate  port,  for  the  purpose  of 
greater  supposed  security,  and  for  transshipment.  His  char 
acter  of  hostility  exists  as  much  in  the  one  case  as  in  the 
other,  and  it  is  only  when  he  has  arrived  in  the  country  in 
which  he  is  to  exercise  his  office,  that  this  character  of  hostil 
ity  ceases,  and  that  of  a  "  middle-m&n,"  entitled  to  peculiar 
privileges,  attaches  to  him,  and  the  neutral  territory  protects 
him.  But  if  he  is  received  on  board  at  a  neutral  port,  with  no 
circumstances  to  excite  suspicion  that  any  character  of  hostil 
ity  attaches  to  him,  that  may  well  affect  the  question  whether 
the  vessel  is  liable  to  confiscation. 

It  is  true  that  the  case  of  the  Caroline  was  one  in  which  the 
question  related  to  the  carriage  of  despatches  from  the  Min 
ister  and  Consul  of  France  in  the  United  States  to  the  govern 
ment  of  France  ;  and  it  has  been  objected  that  the  remarks  of 
Sir  William  Scott  on  this  subject  were  therefore  mere  obiter 
dicta,  that  is,  the  expression  of  his  opinion.  But  he  was  led 
by  the  case  to  consider  this  very  subject,  and  it  is  evident 
from  the  context  and  the  citation  from  Vattel,  that  it  was  a 
well-considered  opinion.  So  the  text-writers,  so  far  as  they 
speak  of  the  principle,  have  received  it ;  for  they  have  promul 
gated  the  rule,  as  thus  stated,  without  doubt  or  question.  At 
least,  we  have  not  seen  or  heard  of  anything  to  the  contrary. 

We  are  aware  that  in  the  same  case  Sir  William  Scott, 
speaking  of  despatches,  says  :  — 

"  The  neutral  country  has  a  right  to  preserve  its  relations  with  the 
enemy,  and  you  are  not  at  liberty  to  conclude  that  any  communication 
between  them  can  partake  in  any  degree  of  the  nature  of  hostility 
against  you.  The  enemy  may  have  his  hostile  projects  to  be  attempt 
ed  with  the  neutral  state ;  but  your  reliance  is  on  the  integrity  of 
that  neutral  state,  that  it  will  not  favor  nor  participate  in  such  designs, 
but,  as  far  as  its  own  councils  and  actions  are  concerned,  will  oppose 
them.  And  if  there  should  be  private  reason  to  suppose  that  this  con 
fidence  in  the  good  faith  of  the  neutral  state  has  a  doubtful  foundation, 


57 

that  is  matter  for  the  caution  of  the  government,  to  be  counteracted  by 
just  measures  of  preventive  policy,  but  it  is  no  ground  on  which  this 
court  can  pronounce  that  the  neutral  carrier  has  violated  his  duty  by 
bearing  despatches,  which,  as  far  as  he  can  know,  may  be  presumed  to 
be  of  an  innocent  nature,  and  in  the  maintenance  of  a  pacific  connection." 

But  these  remarks  will  not  apply  to  an  ambassador  for  the 
first  time  on  his  passage.  If  he  is  proceeding,  in  time  of  war, 
upon  an  embassy  to  another  nation,  even  a  neutral  nation,  he 
goes  as  a  high  official,  to  support  the  interest  of  his  country 
there  in  relation  to  the  war,  as  well  as  other  matters,  and  his 
character  is  necessarily  that  of  hostility.  When  he  arrives, 
the  neutral  territory  will  protect  him  ;  and  then  perhaps  it 
is  not  to  be  presumed  that  his  communications  to  the  neutral 
government  are  those  of  hostility,  and  that  you  are  to  place 
reliance  upon  the  integrity  of  that  government. 

We  have  stated  this  matter  thus  at  large  to  show  that,  on 
the  express  statement  of  the  official  organ  of  the  Confederate 
government,  these  persons  were  not  mere  peaceful  passengers 
on  their  private  business,  as  they  seem  inclined  to  represent 
themselves  in  their  "  protest " ;  and  that,  if  they  had  possessed 
the  official  character  which  their  commissions  assumed  to  con 
fer  upon  them,  they  would  have  been  liable  to  capture. 

But  these  persons  were  not  ambassadors  ;  —  no  question 
respecting  the  rights  of  an  ambassador,  or  the  protection  of  an 
ambassador,  is  brought  directly  in  question  by  the  seizure  ;  — 
and  the  case  of  the  United  States  is  all  the  stronger  because 
they  were  not  entitled  to  that  character. 

The  right  to  send  an  ambassador,  and  of  course  to  confer 
the  privileges  of  an  ambassador  so  far  as  the  party  sending  has 
the  power  so  to  do,  is  a  national  right,  and  not  a  belligerent 
right.  And  as  neither  the  British  government,  nor  any  other 
government,  had  acknowledged  the  nationality  of  the  Confed 
erate  States,  the  latter  were  not  authorized  to  commission  an 
ambassador. 

Messrs.  Mason  and  Slidell  were  public  agents  of  the  Confed- 
8 


58 

erate  States  of  high  official  standing,  —  commissioners,  bearers 
of  despatches  to  other  agents  of  those  States  already  abroad, 
and  charged  with  other  errands  of  hostility  to  the  United 
States,  —  designated  as  ambassadors,  but  possessing  neither 
the  character  nor  the  privileges  of  that  office.  The  general 
question  then  comes,  May  such  hostile  agents  of  the  enemy  — 
proceeding  from  the  enemy's  country  in  an  enemy's  vessel, 
but,  for  the  purpose  of  avoiding  capture,  stopping  in  the  terri 
tory  of  one  neutral,  and  there  transferring  themselves  to  the 
vessel  of  another  neutral  —  be  stopped  and  captured  while 
they,  with  their  despatches,  are  on  board  the  latter  vessel, 
not  having  arrived  at  any  territory  occupied  by  that  neutral  ? 
This  is  the  first  general  question. 

It  may  be  admitted  that  there  is  no  precedent  which  pre 
cisely  covers  all  the  facts  of  this  case  ;  and  we  are  therefore 
put  upon  the  inquiry,  What  is  the  true  principle  applicable 
to  this  new  state  of  facts,  and  by  which  the  question  is  to 
be  solved  ? 

Asking  our  readers  to  bear  in  mind  what  we  have  already 
stated  in  regard  to  the  rights,  duties,  and  obligations  of  neu 
trals,  we  proceed  to  further  citations  from  the  opinions  and 
judgments  of  Sir  William  Scott,  expressed  and  rendered  in 
1807,  which  were  not  only  binding  decisions  at  the  time,  deter 
mining  the  disposition  of  very  large  amounts  of  property,  and 
then  received  as  sound  expositions  of  law  by  the  British  crown 
and  people,  but  which  have  since  been  generally  regarded  as 
authority  by  the  best  elementary  writers  in  England  and  in  this 
country.*  So  far  as  we  are  aware,  they  commanded  the  entire 
confidence  of  British  statesmen  and  lawyers,  until  within  per 
haps  the  last  thirty  days.  The  estimation  in  which  Sir  William 
Scott  was  held  by  the  British  government  appears  from  the 
fact,  that  he  was  afterward  raised  to  the  peerage,  with  the  title 
of  Lord  Stowell.  Our  apology  for  occupying  so  much  of  our 

*  See  3  Phill.  Int.  Law,  368-373  ;  1  Kent,  152,  153  ;  Wheaton's  Int.  Law,  Part 
IV.  Chap.  3,  Sect.  25. 


59 

space  with  these  extracts  is,  that  the  volume  in  which  the  judg 
ments  are  published  is  not  of  ready  access  to  general  readers. 
Case  of  the  Orozembo,  6  Robinson's  Adm.  Rep.  430-439. 
This  was  a  case  of  an  American  vessel, 

"  that  had  been  ostensibly  chartered  by  a  merchant  at  Lisbon,  ( to  pro 
ceed  in  ballast  to  Macao,  and  there  to  take  a  cargo  to  America,'  but 
which  had  been  afterwards,  by  his  directions,  fitted  up  for  the  reception 
of  three  military  officers  of  distinction,  and  two  persons  in  civil  depart 
ments  in  the  government  of  Batavia,  who  had  come  from  Holland  to 
take  their  passage  to  Batavia,  under  the  appointment  of  the  govern 
ment  of  Holland.  There  were  also  on  board  a  lady  and  some  persons 
in  the  capacity  of  servants,  making  in  the  whole  seventeen  passengers." 

"  Sir  William  Scott That  a  vessel  hired  by  the  enemy  for  the 

conveyance  of  military  persons  is  to  be  considered  as  a  transport  subject 
to  condemnation  has  been  in  a  recent  case  held  by  this  court,  and  on 
other  occasions.  What  is  the  number  of  military  persons  that  shall 
constitute  such  a  case,  it  may  be  difficult  to  define.  In  the  former  case 
there  were  many,  in  the  present  there  are  much  fewer  in  number ;  but 
I  accede  to  what  has  been  observed  in  argument,  that  number  alone  is 
an  insignificant  circumstance  in  the  considerations  on  which  the  prin 
ciple  of  law  on  this  subject  is  built ;  since  fewer  persons  of  high  quality 
and  character  may  be  of  more  importance  than  a  much  greater  num 
ber  of  persons  of  lower  condition.  To  send  out  one  veteran  general  of 
France  to  take  the  command  of  the  forces  at  Batavia,  might  be  a  much 
more  noxious  act  than  the  conveyance  of  a  whole  regiment.  The 
consequences  of  such  assistance  are  greater,  and,  therefore,  it  is  what 
the  belligerent  has  a  stronger  right  to  prevent  and  punish.  In  this 
instance  the  military  persons  are  three ;  and  there  are,  besides,  two 
other  persons,  who  were  going  to  be  employed  in  civil  capacities  in  the 
government  of  Batavia.  Whether  the  principle  would  apply  to  them 
alone,  I  do  not  feel  it  necessary  to  determine.  I  am  not  aware  of  any 
case  in  which  the  question  has  been  agitated ;  but  it  appears  to  me,  ON 
PRINCIPLE,  to  be  but  reasonable  that,  whenever  it  is  of  sufficient  im 
portance  to  the  enemy  that  such  persons  should  be  sent  out  on  the  public 
service,  at  the  public  expense,  it  should  afford  equal  ground  of  for 
feiture  against  the  vessel  that  may  be  let  out  for  a  purpose  so  intimately 
connected  with  the  hostile  operations. 


60 

"  It  has  been  argued,  that  the  master  was  ignorant  of  the  character 
of  the  service  on  which  he  was  engaged,  and  that,  in  order  to  support 
the  penalty,  it  would  be  necessary  that  there  should  be  some  proof 
of  delinquency  in  him,  or  his  owner.  But  I  conceive  that  is  not 
necessary.  It  will  be  sufficient  if  there  is  an  injury  arising  to  the 
belligerent  from  the  employment  in  which  the  vessel  is  found.  In 
the  case  of  the  Swedish  vessel  there  was  no  mens  rea  in  the  owner,  or 
in  any  other  person  acting  under  his  authority.  The  master  was  an 
involuntary  agent,  acting  under  compulsion,  put  upon  him  by  the 
officers  of  the  French  government,  and,  so  far  as  intention  alone  is 
considered,  perfectly  innocent.  In  the  same  manner,  in  cases  of  bona 
fide  ignorance,  there  may  be  no  actual  delinquency  ;  but  if  the  service 
is  injurious,  that  will  be  sufficient  to  give  the  belligerent  a  right  to 
prevent  the  thing  from  being  done,  or  at  least  repeated,  by  enforcing 
the  penalty  of  confiscation 

"  If  it  has  appeared  to  be  of  sufficient  importance  to  the  government 
of  the  enemy  to  send  them,  it  must  he  enough  to  put  the  adverse  govern 
ment  on  the  exercise  of  their  right  of  prevention." 

Case  of  the  Atalanta,  6  Rob.  Adm.  Rep.  440-460. 

"  Sir  William  Scott This  being  the  fact  then,  that  there  were 

on  board  public  despatches  of  the  enemy,  not  delivered  up  with  the 
ship's  papers,  but  found  concealed,  it  is  incumbent  on  the  persons  in 
trusted  with  the  care  of  the  ship  and  her  cargo  to  discharge  themselves 
from  the  imputation  of  being  concerned  in  the  knowledge  and  manage 
ment  of  this  transaction 

"Not  to  have  pointed  them  out  to  the  attention  of  the  captors 
amounts  to  a  fraudulent  dissimulation  of  a  fact,  which,  by  the  law  of 
nations,  he  was  bound  to  disclose  to  those  who  had  a  right  to  examine, 
and  possess  themselves  of  all  papers  on  hoard. 

"  That  the  simple  carrying  of  despatches  between  the  colonies  and 
the  mother  country  of  the  enemy  is  a  service  highly  injurious  to  the 
other  belligerent,  is  most  obvious It  is  not  to  be  argued,  there 
fore,  that  the  importance  of  these  despatches  might  relate  only  to  the 
civil  wants  of  the  colony,  and  that  it  is  necessary  to  show  a  military  ten 
dency  ;  because  the  object  of  compelling  a  surrender  being  a  measure  of 
war,  whatever  is  conducive  to  that  event  must  also  be  considered,  in  the 
contemplation  of  law,  as  an  object  of  hostility,  although  not  produced 


61 

by  operations  strictly  military.  How  is  this  intercourse  with  the  mother 
country  kept  up  in  time  of  peace  ?  By  ships  of  war,  or  by  packets  in 
the  service  of  the  state.  If  a  war  intervenes,  and  the  other  bellige 
rent  prevails  to  interrupt  that  communication,  any  person  stepping  in  to 
lend  himself  to  effect  the  same  purpose,  under  the  privilege  of  an  osten 
sible  neutral  character,  does  in  fact  place  himself  in  the  service  of  the 
enemy  state,  and  is  justly  to  be  considered  in  that  character.  Nor  let 
it  be  supposed  that  it  is  an  act  of  light  and  casual  importance.  The 
consequence  of  such  a  service  is  indefinite,  infinitely  beyond  the  effect 

of  any  contraband  that  can  be  conveyed 

"  Unless,  therefore,  it  can  be  said  that  there  must  be  a  plurality  of 
offences  to  constitute  the  delinquency,  it  has  already  been  laid  down  by 
the  Superior  Court,  in  the  Constitution,  that  fraudulent  carrying  the 
despatches  of  the  enemy  is  a  criminal  act,  which  will  lead  to  condemna 
tion.  Under  the  authority  of  that  decision,  then,  I  am  warranted  to 
hold,  that  it  is  an  act  which  will  affect  the  vehicle,  without  any  fear  of 
incurring  the  imputation,  which  is  sometimes  strangely  cast  upon  this 
court,  that  it  is  guilty  of  interpolations  in  the  laws  of  nations.  If  the 
court  took  upon  itself  to  assume  principles  in  themselves  novel,  it  might 
justly  incur  such  an  imputation ;  but  to  apply  established  principles  to 
new  cases  cannot  surely  be  so  considered.  All  law  is  resolvable  into 
general  principles.  The  cases  which  may  arise  under  new  combinations 
of  circumstances,  leading  to  an  extended  application  of  principles,  an 
cient  and  recognized  by  just  corollaries,  may  be  infinite ;  but  so  long  as 
the  continuity  of  the  original  and  established  principles  is  preserved 
pure  and  unbroken,  the  practice  is  not  new,  nor  is  it  justly  chargeable 
with  being  an  innovation  on  the  ancient  law ;  when,  in  fact,  the  court 

does  nothing  more  than  apply  old  principles  to  new  circumstances 

"  To  talk  of  the  confiscation  of  the  noxious  article,  the  despatches, 
which  constitutes  the  penalty  in  contraband,  would  be  ridiculous. 
There  would  be  no  freight  dependent  on  it,  and  therefore  the  same 
precise  penalty  cannot,  in  the  nature  of  things,  be  applied.  It  becomes 
absolutely  necessary,  as  well  as  just,  to  resort  to  some  other  measure 

of  confiscation,  which  can  be  no  other  than  that  of  the  vehicle 

"  The  general  rule  of  law  is,  that  where  a  party  has  been  guilty  of 
an  interposition  in  the  war,  and  is  taken  in  delicto,  he  is  not  entitled 
to  the  aid  of  the  court  to  obtain  the  restitution  of  any  part  of  his 
property  involved  in  the  same  transaction.  It  is  said  that  the  term 


62 

'  interposition  in  the  war'  is  a  very  general  term,  and  not  to  be  loosely 
applied." 

Case  of  the  Susan,  6  Rob.  Adm.  Rep.  461,  note. 

"  The  Susan,  an  American  vessel,  captured  on  a  voyage  from  Bor 
deaux  to  New  York,  having  on  board  a  packet  addressed  to  the  Pre 
fect  of  the  Isle  of  France  (of  which  it  did  not  appear  that  it  con 
tained  more  than  a  letter,  providing  for  the  payment  of  that  officer's 
salary).  The  master  had  made  an  affidavit,  averring  his  ignorance 
of  the  contents,  and  stating  that  the  packet  was  delivered  to  him  by 
a  private  merchant,  as  containing  old  newspapers  and  some  shawls, 
to  be  delivered  to  a  merchant  at  New  York.  The  insignificance  of 
such  a  communication,  and  its  want  of  connection  with  the  political 
objects  of  the  war,  were  insisted  upon.  But  the  court  overruled  that 
distinction,  under  observations  similar  to  those  above  stated ;  and  on 
the  plea  of  ignorance  observed,  that,  without  saying  what  might  be  the 
effect  of  a  case  of  extreme  imposition  practised  on  a  neutral  master, 
notwithstanding  the  utmost  exertions  of  caution  and  good  faith  on  his 
part,  it  must  be  taken  to  be  the  general  rule,  that  a  master  is  not  at 
liberty  to  aver  his  ignorance,  but  that,  if  he  is  made  the  victim  of 
imposition,  practised  on  him  by  his  private  agent,  or  by  the  govern 
ment  of  the  enemy,  he  must  seek  for  his  redress  against  them." 

Case  of  the  Caroline,  (from  which  citations  have  already 
been  made,)  6  Rob.  Adm.  Rep.  461-470. 

"  This  was  a  case  of  the  same  general  class  as  the  preceding,  on  the 
question  of  despatches,  found  on  board  of  an  American  ship,  which  had 
been  captured  with  a  cargo  of  cotton  and  other  articles,  on  freight  on  a 
voyage  from  New  York  to  Bordeaux.  In  this  case  the  despatches 
were  those  of  the  French  Minister  and  the  French  Consul  in  Amer 
ica,  going  to  the  departments  of  government  in  France." 

"  Sir  W.  Scott In  this  case  a  distinction  was  taken,  very  briefly, 

in  the  original  argument,  which  I  confess  struck  me  very  forcibly  at  the 
moment,  that  carrying  the  despatches  of  an  ambassador,  situated  in  a 
neutral  country,  did  not  fall  within  the  reasoning  on  which  the  general 
principle  is  founded ;  and  I  cannot  but  say,  that  the  further  argument 
which  I  have  heard  on  that  point,  and  my  own  consideration  of  the 


63 

subject,  have  but  confirmed  the  impression  which  I  then  received  of 

the  solidity  of  this  distinction 

"  It  has  been  asked,  What  are  despatches  ?  To  which,  I  think,  this 
answer  may  safely  be  returned :  that  they  are  all  official  communica 
tions  of  official  persons  on  the  public  affairs  of  the  government.  The 
comparative  importance  of  the  particular  papers  is  immaterial,  since 
the  court  will  not  construct  a  scale  of  relative  importance,  which  in 
fact  it  has  not  the  means  of  doing,  with  any  degree  of  accuracy,  or 
with  satisfaction  to  itself.  It  is  sufficient,  that  they  relate  to  the  public 

business  of  the  enemy,  be  it  great  or  small It  is  not  to  be 

said,  therefore,  that  this  or  that  letter  is  of  small  moment ;  the  true 
criterion  will  be,  Is  it  on  the  public  business  of  the  state,  and  passing 
between  public  persons  for  the  public  service  ?  That  is  the  question. 

But  if  the  papers  so  taken  relate  to  public  concerns,  be  they 

great  or  small,  civil  or  military,  the  court  will  not  split  hairs,  and  con 
sider  their  relative  importance 

"  The  circumstances  of  the  present  case,  however,  do  not  bring  it 
within  the  range  of  these  considerations,  because  it  is  not  the  case 
of  despatches  coming  from  any  port  of  the  enemy's  territory,  whose 
commerce  and  communications  of  every  kind  the  other  belligerent  has 
a  right  to  interrupt.  They  are  despatches  from  persons  who  are  in  a 
peculiar  manner  the  favorite  objects  of  the  protection  of  the  law  of 
nations,  ambassadors,  resident  in  a  neutral  country,  for.  the  purpose 
of  preserving  the  relations  of  amity  between  that  state  and  his  own 

government 

"It  has  been  argued  truly,  that,  whatever  the  necessities  of  the 
negotiation  may  be,  a  private  merchant  is  under  no  obligation  to  be 
the  carrier  of  the  enemy's  despatches  to  his  own  country.  Certainly 
he  is  not:  and  one  inconvenience,  to  which  he  may  be  held  fairly 
subject,  is  that  of  having  his  vessel  brought  in  for  examination,  and 
of  the  necessary  detention  and  expense.  He  gives  the  captors  an 
undeniable  right  to  intercept  and  examine  the  nature  and  contents  of 
the  papers  which  he  is  carrying;  for  they  may  be  papers  of  an 
injurious  tendency,  although  not  such,  on  any  a  priori  presumption, 
as  to  subject  the  party  who  carries  them  to  the  penalty  of  confiscation, 
and  by  giving  the  captors  the  right  of  that  inquiry,  he  must  submit  to 
all  the  inconvenience  that  may  attend  it.  Ship  and  cargo  restored 
on  payment  of  captors'  expense" 


64 

It  will  be  found,  we  think,  from  a  careful  examination  of 
these  opinions,  that  the  general  principle  applicable  to  the  case 
is,  that  the  subject  or  citizen  of  the  neutral  nation  may  not  do 
anything  directly  auxiliary  to  the  warlike  purposes  of  a  bel 
ligerent,  or,  as  it  is  expressed  in  other  words,  anything  which 
has  a  direct  tendency  to  promote  his  warlike  operations  ;  and 
that  the  transportation  of  agents  whose  business  is  to  promote 
or  facilitate  any  hostile  operations,  or  of  despatches  which 
have,  or  may  be  presumed  to  have,  a  hostile  character,  is  a 
rendition  of  aid  to  the  belligerent  which  justifies  the  capture 
of  the  persons  and  despatches,  and  if  done  with  knowledge, 
actual  or  constructive,  is  such  a  violation  of  neutrality  as  au 
thorizes  the  capture  and  confiscation  of  the  neutral  vessel. 

Speaking  of  the  right  of  search,  it  has  been  said :  "  The 
only  security  that  nothing  is  to  be  found  inconsistent  with 
amity  and  the  law  of  nations  is  the  right  of  personal  visita 
tion  and  search,  to  be  exercised  by  those  who  have  an  interest 
in  making  it."  We  have  here  another  expression  of  the  gen 
eral  principle  which  regulates  neutral  rights  and  duties.  It  is 
not  merely  that  the  neutral  is  not  warranted  in  carrying  this 
or  that  article,  or  this  or  that  person.  He  is  not  to  carry  any 
thing  which  is  inconsistent  with  the  amity  which  subsists 
between  his  nation  and  the  belligerent,  and  which  he  should 
maintain  toward  the  belligerent. 

Having  ascertained  the  principles  which  are  applicable,  we 
turn  again  to  the  facts  of  this  case.  Probably  no  one  doubts 
that  Messrs.  Mason  and  Slidell  were  the  public  agents  of  the 
Confederate  States,  charged  with  all  manner  of  duties  of  a  bel 
ligerent  character.  But  Great  Britain  may  reasonably  ask  for 
some  evidence  of  the  fact,  as  a  justification  for  their  removal 
from  the  Trent.  The  proof  will  doubtless  be  found  to  be 
abundant,  but  our  space  permits  only  two  or  three  sugges 
tions.  In  the  first  place,  there  is  the  message  of  Mr.  Davis,  in 
which  he  states  that  they  are  commissioned,  and  speaks  of 
them  as  "  Ministers,"  showing  them  to  be  public  agents  for 


65 

the  promotion  of  the  interests  of  the  revolutionary  govern 
ment. 

In  the  next  place,  there  is  a  conclusive  presumption  that 
their  agency  was  of  a  belligerent  character,  because  the  people 
of  the  Confederate  States,  being  in  rebellion,  waging  a  civil 
war,  and  acknowledged  only  as  a  belligerent  power,  whatever 
is  to  be  done  for  their  success  is  necessarily  of  a  belligerent 
character.  The  voyage  of  their  agents  to  Europe  was  "  di 
rectly  auxiliary  to  the  warlike  purposes  "  of  the  Confederacy, 
and  as  hostile  as  if  they  had  been  officers  or  soldiers  on  their 
way  to  aid  the  enemy.  An  attempt  merely  to  procure  an  ac 
knowledgment  of  the  independence  of  the  Confederate  States, 
while  the  United  States  are  surrounding  them  with  forces  by 
land  and  sea,  is  of  itself  an  act  of  hostility  to  the  United 
States.  The  object  could  only  be  encouragement  and  aid  in 
the  prosecution  of  the  war,  as  there  is  no  practical  indepen 
dence. 

Similar  remarks  apply  to  the  despatches.  That  such  docu 
ments  were  on  board  is  not  now  concealed.  The  failure  of 
Captain  Wilkes  to  find  them  has  been  a  matter  of  exultation. 
Lieutenant  Fairfax  was  not  bound  to  search  for  them  after  the 
captain  of  the  Trent  refused  to  show  his  passenger  list  or  to 
give  any  information.  He  might  well  suppose  that  they  were 
then  beyond  reasonable  search,  perhaps  concealed  by  some  of 
the  ladies  connected  with  the  agency,  in  what  the  Boston  Post, 
speaking  of  the  secret  transmission  of  traitorous  correspond 
ence  by  Secession  ladies  in-  the  vicinity  of  Washington, 
termed  "  the  holy  precincts  of  their  nether  garments."  The 
Confederate  States  had  no  minister,  nor  any  consul,  in  Eu 
rope  ;  but  they  had  agents  there  actively  attempting  to  pro 
cure  an  acknowledgment  of  their  independence,  and  engaged 
in  purchasing  and  transmitting  munitions  of  war  to  the  South 
ern  ports.  The  despatches,  then,  must  be  presumed  to  relate 
to  these  subjects. 

The  fact  that  the  voyage  of  the  neutral  vessel  was  from  one 
9 


neutral  port  to  another  would  not  have  exempted  these  per 
sons  from  capture,  even  if 'they  had  been  ambassadors  from  a 
recognized  nation,  their  mission  being  of  a  hostile  character. 
A  fortiori,  it  cannot  exempt  them  when  they  are  mere  agents. 
The  character  of  hostility  which  necessarily  attaches  to  them 
as  the  public  agents  of  a  mere  belligerent  power,  proceeding 
with  despatches  which  from  the  nature  of  the  case  must  be 
presumed  to  be  to  hostile  agents  and  for  hostile  purposes, 
shows  a  right  to  capture  them,  even  if  an  ambassador  might 
be  exempted  on  such  a  voyage  because  he  was  a  "  middle- 
man."  We  have  the  distinct  opinion  of  Sir  William  Scott  that 
the  transportation  of  civilians  may  be  ground  of  forfeiture. 

The  neutral  vessel  was  rendering  aid  in  the  accomplish 
ment  of  these  hostile  purposes,  just  as  much  as  she  would 
have  been  if  her  voyage  had  been  direct  from  the  belligerent 
port.  The  neutral  right,  therefore,  cannot  protect  the  hostile 
agent,  whether  there  was  or  was  not  knowledge.  The  want 
of  knowledge  might  protect  the  vessel.  But  here  was  ample 
evidence  to  charge  the  captain  of  the  Trent  with  full  knowl 
edge  of  the  character  of  hostility ;  and  it  may  probably  be 
shown  that  the  embarkation  at  Havana  was  with  sufficient 
pomp  and  circumstance  "  to  constitute  plenary  evidence,  if 
there  were  no  other.* 

The  Trent  was  a  private  passenger  packet,  with  the  advan 
tage  of  a  contract  to  carry  the  mails.  She  was  a  common 
carrier  of  passengers,  and  perhaps  of  goods  also,  but  had  no 
more  of  the  character  of  a  government  vessel  than  the  rail 
road  car  which  carries  the  mail  and  the  mail-agent,  under  a 
contract  with  the  postmaster-general,  has  the  character  of  a 
government  vehicle.  She  was  therefore  liable,  under  the 
circumstances,  to  capture,  and  to  confiscation  also. 

But  here  comes  another,  and  it  would  seem,  from  recent 
suggestions,  the  main  point  to  be  considered.  The  Trent  was 

*  See  Appendix,  Note  B. 


67 

not  captured.  It  is  said  that  for  this  reason  the  proceedings 
are  all  irregular,  and  that  a  demand  for  a  delivery  of  the 
prisoners  is  to  be  made  by  the  British  government,  founded 
upon  the  neglect  to  make  the  capture,  and  the  consequent 
lack  of  any  proof  of  a  right  to  take  the  persons.  This  is  quite 
too  narrow  a  view  of  the  matter,  and  we  shall  not  believe,  until 
we  have  demonstrative  assurance,  that  the  law  officers  of  the 
Crown  will  place  themselves  upon  such  a  small  and  slippery 
foundation.  We  shall  not  enlarge  upon  the  ill  grace  with 
which  Great  Britain  would  urge  the  objection,  not  that 
Mason  and  Slidell  could  not  be  taken,  but  that  Captain 
Wilkes  did  not  capture  the  steamer,  send  her  in  for  trial  and 
confiscation,  and  in  so  doing  delay  her  Majesty's  mails,  and  de 
range  the  business  of  all  the  passengers  and  others  concerned 
in  the  regular  trip  of  the  vessel,  —  that  there  was  therefore 
no  adjudication  of  a  prize  court  to  show  that  the  persons  could 
be  captured,  and  no  other  evidence  would  be  received.  Nor 
need  we  show  what  a  gross  outrage  it  would  be  to  fasten  a 
quarrel  upon  the  nation  whose  officer  had  been  guilty  of  such 
an  act  of  comity  and  favor.  If  blood  ever  cries  to  Heaven  for 
vengeance,  it  would  be  the  blood  shed  in  a  war  having  such  a 
foundation.  And  if  all  Christendom  did  not  cry,  Shame !  it 
would  show  that  the  part  of  it  which  failed  in  the  performance 
of  that  duty  to  humanity  had  lost  all  consciousness  of  the 
difference  between  right  and  wrong.  Such  a  failure  to  do 
Great  Britain  an  injury  may  possibly  be  made  a  pretext  for 
war.  It  can  never  be  the  foundation  of  a  point  of  honor, 
requiring  an  apology. 

But  it  is  argued,  that  in  no  other  way  than  by  sending  in 
the  vessel  can  it  be  shown  by  regular  proof  that  the  right  to 
seize  these  persons  existed ;  and  therefore,  that,  by  reason  of 
the  failure  to  send  in  the  vessel,  we  cannot  establish  the  right 
of  seizure.  It  is  alleged  that  it  has  always  been  the  law  of 
the  world,  that  every  cruiser  making  a  seizure  on  board  of  a 
vessel  shall  bring  the  vessel  in,  and  subject  the  lawfulness  of 


68 

the  seizure  to  adjudication  in  a  prize  court ;  and  that  there  is 
one  excuse  only,  and  that  is  a  want  of  force  on  the  part  of 
the  captors  to  man  the  prize.  Yery  well,  we  have  one  case, 
then,  in  which  it  is  not  necessary  to  establish  the  right  to  seize, 
by  the  decision  of  a  prize  court.  Now  suppose  that  Captain 
Wilkes  had  seized  the  despatches,  and,  taking  them  and 
Messrs.  Mason  and  Slidell  on  board  of  the  San  Jacinto,  (as 
we  suppose  he  had  a  right  to  do,  for  safety,  if  he  had  a  right 
to  seize  the  Trent,)  had  then  put  a  prize  crew  on  board  of  her, 
and  that  she  had  afterward  foundered  at  sea,  or  been  cap 
tured  by  a  Confederate  privateer.  The  proceedings  in  ad 
miralty  for  confiscation  are  in  rem;  and  the  thing  being  gone, 
no  evidence  of  the  right  to  seize  could  be  had  through  the 
adjudication  of  a  prize  court.  This  would  not  have  discharged 
the  persons,  nor  forfeited  the  right  to  withhold  the  despatches. 
Here,  then,  seems  to  be  another  case. 

We  readily  admit  that  the  officer  making  a  seizure  cannot 
confiscate  the  property.  If  a  judgment  of  confiscation  is 
sought,  the  property  must  be  libelled.  The  vessel  is  sent  in 
as  prize,  and  becaiise  she  is  prize,  and  is  to  be  disposed  of  as 
prize  ;  and  not  because  she  is  necessary  as  evidence.  Evidence 
other  than  that  found  on  board  the  vessel  may  be  received. 
(6  Eobinson,  351,  Case  of  the  Romeo.) 

But  we  have  seen  by  the  opinion  of  Sir  William  Scott,  that 
despatches  are  not  the  subject  of  confiscation ;  and  it  is  at  least 
equally  clear  that  Messrs.  Mason  and  Slidell  are  not  so.  If 
the  vessel  had  been  sent  in,  there  could  not  have  been  any  pro 
ceeding"  in  the  prize  court  against  them  or  the  despatches,  and 
of  course  no  judgment  against  either.  It  is  true  that,  the  vio 
lation  of  neutrality  by  the  transportation  of  the  persons  and 
of  the  despatches  being  the  alleged  ground  of  the  seizure 
and  of  the  claim  of  forfeiture,  the  question  whether  the  per 
sons  were  to  be  regarded  as  hostile  agents,  whether  the  de 
spatches  were  of  a  hostile  character,  and  all  other  questions 
affecting  the  right  to  seize,  would  be  directly  before  the  court, 


69 

and  would  be  determined  there,  for  the  purposes  of  that  case; 
that  is,  for  the  purpose  of  deciding1  whether  the  vessel  was 
liable  to  confiscation  or  seizure,  but  no  further.  The  judgment 
of  the  prize  court  would  not  operate  upon  the  persons  or  papers. 
While,  upon  the  ordinary  principles  of  law,  in  the  absence 
of  fraud  or  gross  mistake,  Great  Britain  would  be  bound  to 
respect  and  abide  by  the  decree  of  the  court,  so  far  as  regarded 
the  vessel,  as  the  United  States  have  done  in  relation  to  the 
decisions  of  Sir  William  Scott,  there  would  be  nothing  in  the 
judgment  of  the  court  to  prevent  that  government  from  claim 
ing  of  the  United  States  the  persons  and  papers,  on  evidence 
to  be  adduced  in  support  of  the  claim,  if  it  was  believed  that 
the  opinion  of  the  prize  court  was  erroneous. 

The  distinction  between  evidence  necessary  to  prove  an 
issue,  and  the  matter  in  issue,  is  familiar  to  every  sound  law 
yer.  A  man  is  indicted  for  stealing  the  property  of  A.  B.,  and 
in  order  to  procure  a  conviction  it  must  be  proved,  to  the  sat 
isfaction  of  the  jury,  that  the  property  alleged  to  have  been 
stolen  was  the  property  of  A.  B.,  and  this  being  done,  the  de 
fendant  is  convicted.  But  this  will  not  prevent  C.  D.  from 
afterward  sustaining  a  suit,  to  recover  the  property  or  its 
value,  on  evidence  that  it  in  fact  belonged  to  him.  It  may  be 
said  that  the  reason  is,  that  C.  D.  was  not  a  party  to  the  pro 
ceedings  under  the  indictment,  and  so  not  bound  by  the 
proceeding  there ;  but  that  in  the  prize  court,  where  the  pro 
ceedings  are  in  rem,  all  persons  interested  in  the  property  are 
regarded  as  parties,  and  bound  by  the  decree.  Admit  it.  But 
they  are  parties  only  as  to  the  matter  in  issue,  and  not  as  to 
the  evidence ;  and  they  are  bound  therefore  only  so  far  as  the 
judgment  goes,  that  is,  by  the  confiscation  of  the  vessel. 

We  claim,  then,  to  have  shown  that  the  seizure,  and  even  the 
confiscation,  of  the  vessel  would  have  determined  nothing  in 
relation  to  Messrs.  Mason  and  Slidell,  except  for  the  purpose 
of  the  inquiry,  Prize  or  not  prize  ?  that  the  judgment  in  the 
prize  court  would  in  no  wise  have  operated  upon  them  ;  and 


70 

that  the  opinion  which  that  court  entertained,  so  far  from  be 
ing  conclusive  on  the  British  government  in  relation  to  their 
capture,  would  not,  in  a  legal  point  of  view,  be  even  prima  facie 
evidence.  In  a  diplomatic  correspondence  between  that  gov 
ernment  and  the  United  States,  it  might,  if  it  existed,  be  used 
as  evidence ;  but  other  evidence  would  be  equally  admissible 
on  either  side.  On  the  other  hand,  the  judgment  of  the  prize 
court  releasing  the  vessel,  based  upon  the  expressed  opinion 
of  the  judge  that  the  persons  were  not  liable  to  capture,  and 
that  the  neutral  vessel  was  in  "the  regular  exercise  of  her 
rights,  while  it  may  have  furnished  ground  for  an  application 
to  the  government  for  their  discharge,  would  not  have  been 
legal  evidence  of  a  right  to  their  liberty. 

We  maintain,  therefore,  that  all  questions  respecting  the 
legality  of  the  seizure  of  persons  on  board  of  neutral  vessels, 
so  far  as  they  affect  the  persons  themselves,  or  the  relations  of 
the  government  to  which  they  belong  and  that  making  the 
seizure,  are  either  legal  questions  for  courts  of  common-law 
jurisdiction,  or  political  questions  to  be  settled  by  negotiation, 
if  they  can  be  settled  in  that  mode. 

If  these  positions  are  correct,  the  conclusion  cannot  be  es 
caped  that  the  capture  of  the  vessel  was  not  necessary,  either 
as  matter  of  substance  or  of  form,  in  order  to  justify  the  cap 
ture  of  the  persons.  "Lex  neminem  cogit  ad  vana  seu  inu- 
tilia"  "  Utile  per  inutile  non  vitiatur" 

But  it  may  be  asked,  Has  the  captain  of  a  belligerent 
cruiser  a  right  to  overhaul  the  merchant-vessel  of  a  neutral 
nation,  and  take  men  out  of  her,  on  the  plea  that  they  are 
enemies,  without  any  adjudication  as  to  the  right  to  make  the 
capture  ?  We  answer,  Certainly,  if  he  can  make  proof  of  the 
right  afterward.  There  can  be  no  adjudication  at  the  time. 
He  does  it  on  his  responsibility  and  the  responsibility  of  his 
government,  if  the  right  cannot  be  established.  If  he  may 
seize  vessel,  crew,  cargo,  and  passengers  on  this  responsibility, 
and  send  them  all  into  port,  surely  he  may  seize  the  hostile 


71 

passengers  who  give  occasion  for  the  capture.  In  fact,  if 
Captain  Wilkes  had  seized  the  vessel,  it  would  have  been  his 
duty  to  take  Messrs.  Mason  and  Slidell  on  board  his  own 
vessel  for  security,  and  on  his  arrival  to  report,  and  deliver 
them  into  the  custody  of  the  government,  which  might  at 
once  have  released  them,  and  this  without  affecting  the  pro 
ceedings  against  the  vessel. 

Further,  a  party  who  has  a  right  may  waive  that  right ; 
certainly,  if  others  are  not  thereby  prejudiced.  The  only 
parties  interested  in  favor  of  the  capture  of  the  Trent  were 
the  United  States  and  the  officers  and  crew  of  the  San  Ja- 
cinto.  Captain  Wilkes,  in  behalf  of  the  United  States,  and 
for  himself,  his  officers,  and  crew,  waived  the  right  to  make 
the  capture ;  and  the  government  has  sanctioned  that  pro 
ceeding.  Is  Great  Britain  prejudiced? 

The  speeches  at  the  banquet  of  the  Lord  Mayor  of  London 
certainly  did  not  indicate  a  rupture  of  the  friendly  relations 
between  the  United  States  and  Great  Britain  within  a  very 
short  period ;  but  it  must  be  admitted  that  this  furnishes  no 
absolute  assurance. 

If  Great  Britain  insists  upon  the  delivery  up  of  the  pris 
oners,  and  the  Cabinet  at  Washington  surrender  them  upon 
the  ground  that  the  demand  is  a  distinct  abandonment  of  the 
doctrines  which  she  and  her  prize  courts  have  heretofore  so 
persistently  maintained,  the  people  will  acquiesce,  and  she 
may  yet  believe  that  she  has  gained  nothing  by  the  course 
thus  pursued.  If  she  demand  an  apology  because  the  United 
States  have  merely  followed  out  those  doctrines,  we  venture 
the  opinion  that  she  will  not  get  it. 


APPENDIX. 


NOTE  A.     PAGE  32. 

THE  United  States  have  for  a  long  period,  in  treaties  and  otherwise, 
endeavored  to  procure  the  introduction  of  certain  principles  into  the 
law  of  nations,  different  from  those  heretofore  held  by  Great  Britain, 
respecting  the  rights  of  neutrals,  —  among  them,  the  principle  that  the 
neutral  flag  should  cover  the  property  of  an  enemy  not  contraband  of 
war.  The  Congress  at  Paris  in  >856  adopted  this  with  other  princi 
ples  ;  and  the  United  States  having  offered  to  become  a  party  to  that 
adoption,  the  principle  may  perhaps  be  recognized  hereafter,  although 
the  accession  of  the  United  States  to  the  declaration  of  the  Congress  at 
Paris  has  not  been  received. 


NOTE  B.     PAGE  66. 

The  following  extracts  show  that  Dr.  Phillimore  recognizes  the  right 
of  the  belligerent  to  search  and  seize  where  the  voyage  is  from  one 
neutral  port  to  another  neutral  port.  He  puts  that  as  a  case  where 
there  is  less  to  excite  the  vigilance  of  the  master  of  the  neutral  vessel, 
and  one  where  some  allowance  should  be  made  for  any  imposition  prac 
tised  on  him. 

"  It  is  indeed  competent  to  those  intrusted  with  the  care  of  the  ship  on 
board  of  which  such  despatches  are  found,  to  discharge  themselves  from  the 
imputation  of  being  concerned  in  the  knowledge  or  management  of  the  trans 
action.  But  the  presumption  is  strong  against  the  ignorance  of  the  master  of 
the  ship  ;  and  when  he  has  knowingly  taken  on  board  a  packet  or  letter  ad 
dressed  to  a  public  officer  of  a  belligerent  government,  the  plea  of  the  insig- 

10 


74 

nificance  of  the  communication,  and  its  want  of  connection  with  the  political 
objects  of  the  war,  will  not  avail  him ;  nor,  except  perhaps  in  an  extreme 
case  of  imposition  practised  upon  him,  will  the  plea  of  ignorance  of  the  con 
tents  of  the  despatches  avail  him  :  his  redress  must  be  sought  against  the  per 
son  whose  agent  or  carrier  he  was. 

"  With  respect  to  such  a  case  as  might  exempt  the  carrier  of  despatches 
from  the  usual  penalty,  it  is  to  be  observed  that  where  the  commencement  of 
the  voyage  is  in  a  neutral  country,  and  to  terminate  at  a  neutral  port,  or  at  a 
port  to  which,  though  not  neutral,  an  open  trade  is  allowed,  in  such  case  there 
is  less  to  excite  the  vigilance  of  the  master;  and  therefore  it  may  be  proper 
to  make  some  allowance  for  any  imposition  which  may  be  practised  on  him. 
But  where  the  neutral  master  receives  papers  on  board  in  a  hostile  port,  he 
receives  them  at  his  own  hazard,  and  cannot  be  heard  to  avow  his  ignorance 
of  a  fact  with  which,  by  due  inquiry,  he  might  have  made  himself  acquainted." 
—  3  Phill.  Int.  Law,  374  (published  in  1857). 

It  may  be  admitted  that  in  such  case,  if,  without  knowledge  on  the 
part  of  the  master,  and  with  nothing  to  excite  suspicion,  he,  in  the  or 
dinary  course  of  his  business,  carries  contraband  goods  intended  for  a 
belligerent,  or  the  officers,  soldiers,  agents,  or  despatches  of  a  bellige 
rent,  this  should  not  furnish  cause  for  the  confiscation  of  the  vessel. 
But  neither  the  fact  that  the  immediate  transit  was  from  one  neutral 
port  to  another,  nor  the  want  of  knowledge  of  the  master,  furnishes  a 
reason  why  the  contraband  goods  intended  for  the  belligerent,  or  the 
persons  in  his  service,  or  his  despatches,  should  have  active  transporta 
tion,  for  the  purposes  of  the  war,  by  the  neutral  vessel,  and  at  the  same 
time  immunity  from  capture  because  of  her  neutrality.  The  vessel 
cannot  be  regarded  as  the  territory  of  the  neutral  under  such  circum 
stances,  for  territory  is  not  a  vehicle  of  transportation. 


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